Supreme Court Judgments

Supreme Court of Canada

R. v. Mercure, [1988] 1 S.C.R. 234

Date: 1988-02-25

André Mercure Appellant

v.

The Attorney General for Saskatchewan Respondent

and

The Fédération des francophones hors Québec, the Association canadienne-française de l'Alberta and the Association culturelle franco-canadienne de la Saskatchewan Interveners (principal parties)

and

The Attorney General for Alberta Intervener

and

Freedom of Choice Movement Intervener

INDEXED AS: R. V. MERCURE

File No.: 19688.

1986: November 26, 27; 1988: February 25.

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

Chouinard J. took no part in the judgment.

ON APPEAL FROM THE COURT OF APPEAL FOR SASKATCHEWAN

Constitutional law — Continuance of laws — Saskatchewan Act — Language rights — Legislature and courts of Saskatchewan — Whether s. 110 of The North-West Territories Act continued to apply to Saskatchewan by virtue of the Saskatchewan Act — Saskatchewan Act, S.C. 1905, c. 42, ss. 14, 16.

Constitutional law — Amendment of provincial constitution — Language rights — Legislature and courts of Saskatchewan — Whether rights derived from s. 110 of The North-West Territories Act can be modified unilaterally by Saskatchewan — Saskatchewan Act, S.C. 1905, c. 42, s. 16 — Constitution Act, 1982, s. 45 .

Constitutional law — Language rights — Saskatchewan statutes — Whether s. 110 of The North-West Territories Act requires Saskatchewan Legislature to

[Page 235]

publish its laws in English and in French — Saskatchewan Act, S.C. 1905, c. 42, ss. 14, 16.

Constitutional law — Language rights — Saskatchewan courts — Provincial offence — Whether accused has a right to use the French language in proceedings before the Saskatchewan courts — Content of right — The North-West Territories Act, R.S.C. 1886, c. 50, s. 110 (am. S.C. 1891, c, 22, s. 18) — Saskatchewan Act, S.C. 1905, c. 42, s. 16.

Criminal law — Provincial offence — Trial — Saskatchewan courts — Whether accused has a right to use the French language in proceedings before the Saskatchewan courts — Content of right — The North-West Territories Act, R.S.C. 1886, c. 50, s. 110 (am. S.C. 1891, c. 22, s. 18) — Saskatchewan Act, S.C. 1905, c. 42, s. 16.

Appellant, charged with speeding under the Saskatchewan Vehicles Act, made an application in the Provincial Court to enter a plea in French, to have his trial proceeded with in that language, and to have the hearing delayed until the relevant provincial statutes could be produced in French. The application was based on s. 110 of The North-West Territories Act which provides that "Either the English or the French language may be used by any person in the debates of the Legislative Assembly of the Territories and in the proceedings before the courts; … and all ordinances made under the Act shall be printed in both those languages… ." Appellant maintained that this provision still applies to the courts and the Legislature of Saskatchewan by virtue of s. 16 of the Saskatchewan Act. The Provincial Court judge denied appellant's application. He held that s. 110 of The North-West Territories Act was applicable to the Saskatchewan courts and entitled appellant to use the French language before the Provincial Court and to be provided with an interpreter. But he also held that appellant was not entitled to be provided with statutes printed in French because the requirement in s. 110 regarding the publication of laws was in terms restricted to the Territorial Assembly and had no application to the Saskatchewan Legislature. When asked to enter a plea, appellant indicated that he wished to stand mute. The trial judge entered a plea of not guilty and the trial was conducted entirely in English. No interpreter was present because appellant took the position that having an interpreter did not comply with s. 110 and that he could not defend himself without access to the relevant statutes printed in French. Appel-

[Page 236]

lant was convicted and his appeal by way of stated case to the Court of Appeal was dismissed.

Held (Estey and McIntyre JJ. dissenting): The appeal should be allowed.

Per Dickson C.J. and Beetz, Lamer, Wilson, Le Dain and La Forest JJ.: Parliament, in establishing the province of Saskatchewan out of the North-West Territories, provided under s. 16 of the Saskatchewan Act for the general continuation of pre-existing laws except in so far as those laws were inconsistent with the Saskatchewan Act, or in so far as the Act contained provisions as a substitute therefor. Since Parliament did not expect these laws to continue forever, it empowered the appropriate legislature, in accordance with the division of legislative power, to repeal or amend such laws. Section 110 of The North-West Territories Act was a law existing at the establishment of the province. Since no provision of the Saskatchewan Act was inconsistent with s. 110 or was intended as a substitute for it, and since there was no amendment of the provisions of that section with respect to the language of the statutes and of the proceedings in the courts, it follows that s. 110 continues in effect for that purpose and that the statutes of Saskatchewan must be enacted, printed and published in English and French and that both languages may be used in the Saskatchewan courts.

The view that s. 16 did not operate to continue the provisions of s. 110 relating to the Territorial Assembly involves a misunderstanding of the nature of provisions for the continuation of laws. In according rights to persons to speak English or French in the North-West Territories in 1877, the legislation necessarily had to be addressed to the then existing institutions—the Territorial Assembly and courts. To continue the laws establishing these rights, which s. 16 generally purports to do, it was obviously necessary to apply them to the successor institutions. In any event, the broad wording used in s. 14 of the Saskatchewan Act was intended to cover in a general and comprehensive way the laws governing the operation of the legislature. Thus the Saskatchewan Act, either by virtue of s. 14 alone or read in conjunction with s. 16, provided for the continuance of all laws governing the legislature that were not inconsistent with the Act.

[Page 237]

The English language did not become the language of the courts of the North-West Territories, and later of the Saskatchewan courts, by virtue of the English statute of 1731, which prescribed that all proceedings in the courts be in English only. The 1886 amendment to The North-West Territories Act providing for the reception date of English law as of 1870 never had the effect of incorporating this statute as part of the law of the Territories because any existing law on the language of the courts was impliedly repealed by s. 110 which fully covered the subject-matter. There was, therefore, no law regarding the language of the courts to be continued in Saskatchewan other than s. 110. The section was not repealed as no mention whatsoever was made of language in the various Acts that restructured the Saskatchewan judicial system. In particular, s. 110 was not impliedly repealed merely because certain rules of court and court forms were written on the assumption that the judicial system would operate in English.

While s. 110 governs procedural matters, it does not serve merely procedural ends. It embodies procedural rules that give rights to individuals. The courts have treated laws giving expression to human rights as being of an almost constitutional nature. Repeal of such laws requires "clear legislative pronouncement". Language rights are a well-known species of human rights and should be approached accordingly.

Section 110 was not entrenched after the Saskatchewan Act was passed. The express words of ss. 14 and 16(1) of the Saskatchewan Act clearly provide that the laws continued under the Act are subject to repeal by the appropriate legislature. Not only is the province empowered to legislate respecting procedure in the courts under s. 92(14)  of the Constitution Act, 1867 , it is also given power to amend its constitution under s. 45  of the Constitution Act, 1982 .

The language rights accorded by s. 110 of The North-West Territories Act are substantially the same as those accorded under s. 133  of the Constitution Act, 1867 , s. 23 of the Manitoba Act, 1870 and ss. 16  to 18  of the Canadian Charter of Rights and Freedoms . Under s. 110, an accused is constitutionally entitled to speak French before the courts in Saskatchewan, but has no right to be understood in that language. The judge and all court officials can use English or French as they wish, both in oral and in written communication. The

[Page 238]

accused has no right to a translator, except as required for a fair trial either at common law or under ss. 7  and 14  of the Charter . The right to be understood is not a language right but one arising out of the requirements of due process. Finally, when proceedings are required by law to be recorded, a person using one or the other official language has the right to have his remarks recorded in that language. Accordingly, in this case, appellant was entitled to use French in the Provincial Court, but he could not require the others to do so. As there was no evidence to indicate that he needed the services of a translator to understand the proceedings, a fair trial could be conducted without making a translation available from English to French.

As to appellant's request that a French version of the relevant statutes be produced, it was obvious that he sought valid statutes, not mere unofficial translations. The statutes of Saskatchewan must, by virtue of the province's constituent statute, the Saskatchewan Act, be enacted, printed and published in English and French. Since the statutes of Saskatchewan were not enacted in the manner and form required by its constituent statute, it follows that they are invalid. The principle of the rule of law and the de facto doctrine, however, will keep the existing laws temporarily in effect for the minimum time necessary for the statutes to be translated, re-enacted, printed and published in French or for the legislature to amend its constitution by enacting a bilingual statute removing the restrictions imposed on it by s. 110 and then declaring all existing laws valid notwithstanding that they were enacted, printed and published in English only. The principle of the rule of law would have also preserved the enforceability of appellant's conviction. But, in this case, the trial judge's failure to comply with appellant's request to have his plea entered in French vitiated the trial. He sought to use French, and had a right to have his plea entered in that language. His subsequent refusal to enter a plea was consequential to this. The conviction should be quashed.

Per Estey and McIntyre JJ. (dissenting): Parliament made provision in the Saskatchewan Act for a new legislature and courts in the new province. In doing so, Parliament, pursuant to s. 16(1) of the Act, incorporated by reference the laws of the North-West Territo-

[Page 239]

ries into the laws of Saskatchewan except where the Territories' laws were inconsistent with the Act or where there was a substitute in the Act. Parliament, in so exercising its authority under the Constitution Act, 1871, refrained from establishing any language rights in the new province. Indeed, unlike the situation resulting from the presence of s. 23 in the Manitoba Act, 1870, there was no constitutional impediment or restriction on the exercise by the new province of its free legislative will under s. 92  of the Constitution Act, 1867  as regards the use of language in the legislature and the courts. In these circumstances, it would be unusual to find that s. 110 of The North-West Territories Act was introduced into the Constitution of Saskatchewan by an indirect and convoluted process so as to achieve the Manitoba result.

Section 16(1) of the Saskatchewan Act did not incorporate s. 110 into the laws of Saskatchewan. Section 3 of the Saskatchewan Act provided that the "provisions of the Constitution Acts, 1867 to 1886 shall apply to the province of Saskatchewan", except the provisions, like s. 133  of the Constitution Act, 1867 , which are "specially applicable to … one or more and not the whole of the said provinces". Section 3 gave the new province full plenary powers to establish its courts and legislature as it saw fit, free from the restrictions in s. 133. Section 16(1) of the Saskatchewan Act could not therefore indirectly repeal s. 3 by requiring the new legislature established in Saskatchewan to operate under the regime of s. 133.

Further, the courts established in Saskatchewan by Parliament acting under s. 2 of the Constitution Act, 1871 were substitutes for the courts described in the laws of the North-West Territories and accordingly those laws relating to courts of the Territories were not, by the terms of s. 16(1), brought into the new province. These new 'courts of Saskatchewan' were put in place to carry on a function under s. 92(14)  of the Constitution Act, 1867 . Section 110, which was either a precautionary recognition of s. 133  of the Constitution Act, 1867  or a part of the federal administration of those territories lying outside any province under s. 4 of the Constitution Act, 1871, was never intended to apply to courts not within federal jurisdiction. It follows that s. 110 was only intended to apply to the courts of the North-West Territories and to no successor courts. It also follows that the provisions in that section relating to the printing of laws in French applied only to the Legislative Assembly of the North-West Territories. The Legisla-

[Page 240]

ture of Saskatchewan established by ss. 12 to 15 of the Saskatchewan Act was a completely new institution and the laws relating thereto were in substitution for the laws relating to the legislature in the North-West Territories prior to 1905. This conclusion is supported by s. 14 of the Saskatchewan Act which provides that the laws of the North-West Territories relating to the "constitution" and the "election of members" of the Legislature of the North-West Territories shall apply to the Legislative Assembly of Saskatchewan. This section would be unnecessary if s. 16(1) of the Saskatchewan Act carried forward all the laws of the North-West Territories, including s. 110, into Saskatchewan. Also, section 14 did not incorporate s. 110 into the laws of Saskatchewan for s. 110 was not a provision of a North-West Territories' law relating to the "constitution" of the Legislature of the Territories.

By the terms of s. 16(1) itself, s. 110 did not qualify for incorporation by reference into the laws of the new province. As there was nothing in the Saskatchewan Act addressing the use of language in the province's courts or legislature, the exclusive provincial legislative sovereignty under the Constitution remained untrammelled by any provisions of the Saskatchewan Act. The application of s. 110 would be a curtailment of the institutions created and the authority granted to the legislature of the new province by the Saskatchewan Act and, accordingly, was inconsistent with the Act.

In short, the language guarantees found in s. 110 were specific to the Legislature and the courts of the North-West Territories. Saskatchewan, like all provinces, acquired the power to establish its institutions when it was created, including the power to specify the language to be used in their proceedings. Section 110 of The North-West Territories Act cannot reasonably be read as having the effect of altering by inference the constitutional division of powers provided for in both the Constitution Act, 1867  and the Saskatchewan Act.

Finally, even assuming that s. 110 was incorporated into the laws of Saskatchewan, the section would still have no application to the proceedings of that province's courts and legislature. Indeed, if s. 110 became part of Saskatchewan law, it did so instantaneously with the termination of the existence of the only two institutions to which it applied. The Legislature of the North-West Territories was replaced under s. 12 of the Saskatche-

[Page 241]

wan Act and the courts were replaced under s. 16 of the same Act. Thus section 110 became simultaneously spent as regards the legislature and the courts of Saskatchewan with its introduction into Saskatchewan law. Furthermore, Parliament also simultaneously "disestablished" the Supreme Court of the North-West Territories even as it applied to the Territories.

Cases Cited

By La Forest J.

Overturned: Strachan v. Lamont (1906), 4 W.L.R. 411; applied: MacDonald v. City of Montreal, [1986] 1 S.C.R. 460; Société des Acadiens du Nouveau-Brunswick Inc. v. Association of Parents for Fairness in Education, [1986] 1 S.C.R. 549; Attorney General of Quebec v. Blaikie, [1979] 2 S.C.R. 1016; Reference re Manitoba Language Rights, [1985] 1 S.C.R. 721; referred to: Bilodeau v. Attorney General of Manitoba, [1986] 1 S.C.R. 449; R. v. Lefebvre (1982), 21 Alta. L.R. (2d) 65 (Q.B.), aff'd (1986), 48 Alta. L.R. (2d) 124 (C.A.); Jones v. Attorney General of New Brunswick, [1975] 2 S.C.R. 182; R. v. Tremblay (1985), 20 C.C.C. (3d) 454; Paquette v. R. in Right of Canada (1985), 40 Alta. L.R. (2d) 38 (Q.B.), aff'd (1987), 55 Alta. L.R. (2d) 1 (C.A.); Reference re French Language Rights of Accused in Saskatchewan Criminal Proceedings, [1987] 5 W.W.R. 577; R. v. Murphy (1968), 69 D.L.R. (2d) 530; Re Poulin (1968), 64 W.W.R. 705; Toll v. Canadian Pacific Railway Co. (1908), 8 W.L.R. 795; Schultz v. Wolske (1966), 75 W.W.R. 411; Stevens v. Quinney (1979), 101 D.L.R. (3d) 289; The India (1865), 12 L.T.N.S. 316; Seward v. The "Vera Cruz" (1884), 10 App. Cas. 59; Winnipeg School Division No. 1 v. Craton, [1985] 2 S.C.R. 150; Spooner Oils Ltd. v. Turner Valley Gas Conservation Board, [1933] S.C.R. 629; Edwards v. Attorney-General for Canada, [1930] A.C. 124; M'Culloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819); OPSEU v. Ontario (Attorney General), [1987] 2 S.C.R. 2; Attorney General of Canada v. Canadian National Transportation, Ltd., [1983] 2 S.C.R. 206; Hoskyn v. Metropolitan Police Commissioner, [1979] A.C. 474; Bribery Commissioner v. Ranasinghe, [1965] A.C. 172; Attorney-General for New South Wales v. Trethowan, [1932] A.C. 526; Harris v. Minister of the Interior, [1952] 2 S.A.L.R. (N.S.) 428.

By Estey J. (dissenting)

Strachan v. Lamont (1906), 4 W.L.R. 411; Société des Acadiens du Nouveau-Brunswick Inc. v. Association of Parents for Fairness in Education, [1986] 1 S.C.R. 549; Jones v. Attorney General of New Bruns-

[Page 242]

wick, [1975] 2 S.C.R. 182; R. v. Lefebvre (1982), 21 Alta. L.R. (2d) 65 (Q.B.), aff'd (1986), 48 Alta. L.R. (2d) 124 (C.A.); Attorney General of Manitoba v. Forest, [1979] 2 S.C.R. 1032; Reference re Manitoba Language Rights, [1985] 1 S.C.R. 721; MacDonald v. City of Montreal, [1986] 1 S.C.R. 460.

Statutes and Regulations Cited

Act further to amend the law respecting the North-West Territories, S.C. 1886, c. 25, s.3.

Act that all Proceedings in Courts of Justice within that Part of Great Britain called England, and in the Court of Exchequer in Scotland, shall be in the English Language, 4 Geo. 2, c. 26 (G.B.)

Act to amend Schedule A to the Revised Statutes, 1906, S.C. 1907, c. 44. Act to amend the Acts respecting the North-West Territories, S.C. 1891, c. 22, s. 18.

Alberta Act, S.C. 1905, c. 3 [reprinted in R.S.C. 1970, App. II, No. 19], s. 16.

Canadian Charter of Rights and Freedoms,  ss. 7 , 14 , 16 , 17 , 18 , 19 , 20 .

Colonial Laws Validity Act, 1865 (U.K.), 28 & 29 Vict., c. 63, s. 5.

Constitution Act, 1867,  ss. 92(14) , 93 , 101 , 129 , 133 , 146 .

Constitution Act, 1871 (U.K.), 34 & 35 Vict., c. 28 [reprinted in R.S.C. 1970, App. II, No. 11], ss. 2, 4, 5, 6.

Constitution Act, 1982,  ss. 43 , 45 .

Court of Appeal Act, S.S. 1915, c. 9.

District Courts Act, S.S. 1907, c. 9.

International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI), 21 U.N. GAOR, Supp. (No. 16) 52, U.N. Doc. A/6316 (1966), art. 27.

Interpretation Act, R.S.S. 1978, c. I-11.

Judicature Act, S.S. 1907, c. 8, ss. 3, 4.

King's Bench Act, S.S. 1915, c. 10.

Legislative Assembly Act, S.S. 1906, c. 4.

Magistrates Act, S.S. 1906, c. 19.

Manitoba Act, 1870, S.C. 1870, c. 3 [reprinted in R.S.C. 1970, App. II, No. 8], s. 23.

Manitoba Boundaries Extension Act, 1912, S.C. 1912, c. 32.

North-West Territories Act, 1875, S.C. 1875, c. 49, ss. 13, 59.

North-West Territories Act, 1877, S.C. 1877, c. 7, s. 11.

North-West Territories Act, 1880, S.C. 1880, c. 25, s. 94.

North-West Territories Act, R.S.C. 1886, c. 50, s. 110 [rep. & subs. 1891, c. 22, s. 18].

North-West Territories Amendment Act, 1905, S.C. 1905, c. 27, ss. 2, 6, 8.

Official Languages of New Brunswick Act, R.S.N.B.1973, c. O-1, s. 13(1).

[Page 243]

Ordinances of the Northwest Territories, 1905-1930.

Parliament Act, 1911 (U.K.), 1 & 2 Geo. 5, c. 13.

Police Magistrates' Act, S.S. 1907, c. 14.

Provincial Court Act, 1978, S.S. 1978, c. 42 [now R.S.S. 1978 (Supp.), c. P-30.1].

Revised Statutes of Canada, 1906, Act, S.C. 1907, c. 43.

Rupert's Land Act, 1868 (U.K.), 31 & 32 Vict., c. 105 [reprinted in R.S.C. 1970, App. II, No. 6].

Rupert's Land and North-Western Territory Order, June 23, 1870, R.S.C. 1970, App. II, No. 9.

Saskatchewan Act, S.C. 1905, c. 42 [reprinted in R.S.C. 1970, App. II, No. 20], ss. 3, 10, 12, 13, 14, 15, 16, 17, 18, 20.

Saskatchewan Evidence Act, R.S.S. 1978, c. S-16.

Summary Offences Procedure Act, R.S.S. 1978, c. S-63.

Surrogate Courts Act, S.S. 1907, c. 10.

Temporary Government of Rupert's Land Act, 1869, S.C. 1869, c. 3 [reprinted in R.S.C. 1970, App. II, No. 7].

Vehicles Act, R.S.S. 1978, c. V-3, s. 139(4).

Authors Cited

Canada. Canada Year Book 1912. Ottawa: King's Printer, 1913.

Canada. Statistics Canada. Canada Year Book 1988. Ottawa: Supply and Services Canada, 1987.

Debates of the House of Commons, 4th Sess., 3rd Parl., 40 Vict., 1877, p. 1872.

Debates of the House of Commons, 4th Sess., 6th Parl., 53 Vict., 1890, pp. 756, 857, 1002.

Debates of the House of Commons, 1st Sess., 10th Parl., 5 Edw. VII, 1905, pp. 8240, 8242, 8530 et seq., 8548, 8554, 8571, 8572, 8576, 8577, 8579, 8580, 8607, 8608, 8610, 8843, 8850, 8851.

Debates of the Senate, 4th Sess., 3rd Parl., 40 Vict., 1877, p. 319.

Driedger, Elmer A. Construction of Statutes, 2nd ed.

Toronto: Butterworths, 1983.

Driedger, Elmer A. The Composition of Legislation, 2nd ed. rev. Ottawa: Department of Justice, 1976.

Hogg, Peter W. Constitutional Law of Canada, 2nd ed.

Toronto: Carswells, 1985.

Jennings, Sir William Ivor. The Law and the Constitution, 3rd ed. London: University of London Press, 1943.

Kerr, Robert W. "Regina v. Murphy and Language Rights Legislation" (1970), 20 U.N.B.L.J.35.

Sheppard, Claude-Armand. The Law of Languages in Canada. Ottawa: Information Canada, 1971.

Silver, Arthur I. The French-Canadian Idea of Confederation, 1864-1900. Toronto: University of Toronto Press, 1982.

[Page 244]

Tabory, Mala. "Language Rights as Human Rights" (1980), 10 Israel Y.B. on Human Rights 167.

Wade, Mason. The French Canadians 1760-1967, vol.

1. Toronto: MacMillan, 1968.

Wheare, Kenneth Clinton. The Statute of Westminster and Dominion Status, 5th ed. London: Oxford University Press, 1953.

APPEAL from a judgment of the Saskatchewan Court of Appeal (1985), 44 Sask. R. 22, 24 D.L.R. (4th) 193, 23 C.C.C. (3d) 140, [1986] 2 W.W.R. 1, upholding a judgment of the Provincial Court (1981), 44 Sask. R. 43, [1981] 4 W.W.R. 435. Appeal allowed, Estey and McIntyre JJ. dissenting.

Michel Bastarache and Roger Lepage, for the appellant and the interveners (principal parties).

Robert G. Richards and Cheryl Crane, for the respondent.

Peter T. Costigan and J. Robert Black, for the intervener the Attorney General for Alberta.

Joseph Eliot Magnet, for the intervener the Freedom of Choice Movement.

The judgment of Dickson C.J. and Beetz, Lamer, Wilson, Le Dain and La Forest JJ. was delivered by

La Forest J.—This case raises several important questions: whether a French-speaking person accused of a provincial quasi-criminal offence under a Saskatchewan statute has the right to use French at his trial; whether he has the right to have the trial conducted in that language; whether the statutes of that province are required to be published in both English and French; whether such rights are constitutionally entrenched; and the content of any such rights.

Background

The case arises out of the following facts. The appellant, Father Mercure, was charged with speeding contrary to s. 139(4) of The Vehicles Act, R.S.S. 1978, c. V-3, and was issued a summons under the provisions of The Summary Offences Procedure Act, R.S.S. 1978, c. S-63. On his appearance in the Provincial Court, his counsel applied for permission to enter a plea to the charge

[Page 245]

in the French language, to have his trial proceeded with in that language, and to have the hearing of the charge delayed until such time as the Clerk of the Legislative Assembly for the province of Saskatchewan could produce the relevant statutes printed in the French language.

There is no law of the provincial legislature dealing with these issues; nor is there any express provision in the province's constituent Act, the Saskatchewan Act, S.C. 1905, c. 42, regarding the matter. Saskatchewan, however, was not created in a legal vacuum. Before its establishment it formed part of the North-West Territories, the constituent Act of which, The North-West Territories Act, R.S.C. 1886, c. 50, as amended, contained a provision, s. 110, rather similar to s. 133  of the Constitution Act, 1867 , which provided for the use of English and French in proceedings before the Territorial Assembly and the courts and requiring the use of both languages in the Assembly's records and journals as well as the printing of its laws in those languages. The provision was re-enacted in 1891 (S.C. 1891, c. 22, s. 18), and as so framed was in effect at the establishment of the province. It reads as follows:

110. Either the English or the French language may be used by any person in the debates of the Legislative Assembly of the Territories and in the proceedings before the courts; and both those languages shall be used in the records and journals of such Assembly; and all ordinances made under this Act shall be printed in both those languages: Provided, however, that after the next general election of the Legislative Assembly, such Assembly may, by ordinance or otherwise, regulate its proceedings, and the manner of recording and publishing the same; and the regulations so made shall be embodied in a proclamation which shall be forthwith made and published by the Lieutenant Governor in conformity with the law, and thereafter shall have full force and effect. [Emphasis added.]

Counsel for the appellant maintained that this provision applies to the courts and the Legislature of Saskatchewan by virtue of s. 16 of the Saskatchewan Act which (like s. 129 of the Constitu-

[Page 246]

tion Act, 1867) continues existing laws, subject to their being repealed by the appropriate legislature. Section 16(1), so far as immediately relevant, reads:

16. (1) All laws and all orders and regulations made thereunder, so far as they are not inconsistent with anything contained in this Act, or as to which this Act contains no provision intended as a substitute therefor, and all courts of civil and criminal jurisdiction, and all commissions, powers, authorities and functions, and all officers and functionaries, judicial, administrative and ministerial, existing immediately before the coming into force of this Act in the territory hereby established as the province of Saskatchewan, shall continue in the said province as if this Act and The Alberta Act had not been passed; subject, nevertheless, except with respect to such as are enacted by or existing under Acts of the Parliament of Great Britain, or of the Parliament of the United Kingdom of Great Britain and Ireland, to be repealed, abolished or altered by the Parliament of Canada, or by the Legislature of the said province, according to the authority of the Parliament or of the said Legislature…

Judge Deshaye, who heard the case at first instance, agreed that the effect of these provisions was to permit Father Mercure to use French in the court: (1981), 44 Sask. R. 43, [1981] 4 W.W.R. 435. Section 110 of The North-West Territories Act, in his view, was continued by s. 16 of the Saskatchewan Act so far as the languages of the courts were concerned. But that right, he held, would be satisfied by making an interpreter available. He also held that the requirement in s. 110 regarding the publication of laws was in terms restricted to the Territorial Assembly and had no application to the Legislature of Saskatchewan. Father Mercure not having made a plea, the judge entered a plea of not guilty and the trial was conducted entirely in English, following which Father Mercure was found guilty of the charge and convicted. No interpreter was present because the appellant took the position that having an interpreter did not comply with s. 110 and that he could not defend himself without access to the

[Page 247]

relevant statutes proclaimed and printed in the French language.

An appeal to the Saskatchewan Court of Appeal, heard by a five person panel, was dismissed: (1985), 44 Sask. R. 22, 24 D.L.R. (4th) 193, 23 C.C.C. (3d) 140, [1986] 2 W.W.R. 1. A majority (Bayda C.J.S., Brownridge, Tallis and Cameron JJ.A.) came to substantially the same conclusion as the trial judge regarding the continuance of language rights. In dissent, however, Hall J.A. concluded that s. 110 continued in effect only during the transitional period when the province was being established. However, he noted that if he was in error on this point, he did not think the requirements relating to the conduct of the trial would be satisfied by merely supplying an interpreter, but would require simultaneous translation from one language to the other. Assuming such error, he further thought the statutes of Saskatchewan would have to be printed in both English and French; the language of s. 110, in his view, was clear on this point.

Father Mercure was granted leave to appeal to this Court but he died before the appeal could be heard. This Court, however, then authorized the intervener associations to continue the appeal as principal parties. The Attorney General for Alberta, which province is in a similar situation to Saskatchewan, intervened, as did the Freedom of Choice Movement. The Court stated the following constitutional questions:

1. Does s. 110 of The North-West Territories Act (54 & 55 Vict., c. 22, s. 18) continue to apply, in whole or in part, to the province of Saskatchewan by virtue of s. 16 of the Saskatchewan Act?

2. If the answer to Question 1 is affirmative, do the rights which are derived from s. 110 of The North-West Territories Act form part of the Constitution of Canada or can they be modified unilaterally by Saskatchewan and if so to what extent?

3. If the answer to Question 1 is affirmative, does s. 110 of The North-West Territories Act require Saskatchewan to print its laws in English and in French?

[Page 248]

4. If the answer to Question 1 is affirmative, does s. 110 of The North-West Territories Act afford a party pleading in a court of Saskatchewan the right to use either English or French?

5. If the answer to Question 1 is affirmative, does s. 110 of The North-West Territories Act require that the proceedings be conducted in English or French at the option of the accused or defendant?

6. If the answer to Question 4 is affirmative, does the right to use either English or French before the courts of Saskatchewan include, by virtue of s. 110 of The North-West Territories Act, the right to be understood by the judge or judge and jury without the assistance of an interpreter or simultaneous translation?

Legislative History

In my view, this case can be resolved simply by the application of the ordinary principles of statutory construction. However, all parties stressed the legislative history of the appropriate provisions and grounded some of their arguments in that history. At all events, it forms a useful backdrop for a consideration of the central issues and is of assistance in revealing legislative purpose. For much of the following historical discussion, I have relied upon Claude-Armand Sheppard, The Law of Languages in Canada (1971), c. I-C (a study of the Royal Commission on Bilingualism and Biculturalism).

When the four original provinces were united by the Constitution Act, 1867 , the territory now comprising Saskatchewan did not, of course, form part of Canada but was part of the vast area known as Rupert's Land and the North-Western Territory originally ceded to the Hudson's Bay Company in 1670 which still exercised all governmental powers over the area at Confederation. However, s. 146 of that Act contemplated the transfer of these Territories to Canada. Accordingly, these lands were surrendered by the Hudson's Bay Company in 1868 (Rupert's Land Act, 1868 (U.K.), 31 & 32 Vict., c. 105), and in 1870 the Territories were admitted into the Union pursuant to an Imperial Order in Council; see R.S.C. 1970, App. II, No. 9. In the interim, Canada had passed a rudimentary

[Page 249]

Act for their temporary administration (S.C. 1869, c.3).

The impending changes were not viewed with favour by the people in the Territories, most of whom lived in the Red River area of what is now Manitoba. Many of them were French-speaking and had been accustomed to considerable governmental services in their own language, both by the Council of Assiniboia, which exercised governmental functions in the Red River area, and in the courts. From about 1835, the Council of Assiniboia began publishing its resolutions by reading them aloud in English and French (Sheppard, op. cit., at pp. 73-76), and from about 1855, local representation on the Council was on a roughly equal English and French basis (see Mason Wade, The French Canadians 1760-1967 (rev. ed. 1968), vol. 1, at p. 397). Similarly the courts counted a number of bilingual judges.

After some tense confrontations, in which demands were made that English and French be used in the legislature and that judges speak both languages, the Canadian government acceded to the demands of the people of the Territories. To that end, Canada enacted the Manitoba Act, 1870, S.C. 1870, c. 3, which created the province of Manitoba out of the Red River settlement and surrounding lands, and by s. 23, provided certain guarantees regarding the use of the English and French languages in the Manitoba Legislature and in its courts. The background in Manitoba is set forth in Reference re Manitoba Language Rights, [1985] 1 S.C.R. 721, at pp. 731-32. For a detailed account of the situation in the Territories generally, see also Sheppard, op. cit., at pp. 77-79.

I should add here that while s. 146  of the Constitution Act, 1867  provided for the admission of those Territories into the Union, it made no specific provision for the manner in which Parliament could deal with them. To settle the doubts surrounding this question, the Constitution Act,

[Page 250]

1871 (U.K.), 34 & 35 Vict., c. 28, was enacted. This Act by s. 2 gave Parliament power to create new provinces and by s. 5 confirmed the Manitoba Act, 1870. More important for present purposes, it also provided, by s. 4, that Parliament could make provision for the administration, peace, order and good government of any territory not for the time being included in any province.

The first North-West Territories Act, enacted in 1869 (S.C. 1869, c. 3) before this enabling legislation, said nothing about the language of the courts or the legislature. This is scarcely surprising owing to its temporary and rudimentary character. Nor were any such provisions enacted in The North-West Territories Act, 1875, S.C. 1875, c. 49, which amended and consolidated earlier enactments for the governance of the Territories. In 1877, however, while some unrelated amendments were being made, the first version of s. 110 was added to the amending Bill in the Senate; see S.C. 1877, c. 7, s. 11. That provision read as follows:

11. Either the English or the French language may be used by any person in the debates of the said Council, and in the proceedings before the Courts, and both those languages shall be used in the records and journals of the said Council, and the ordinances of the said Council shall be printed in both those languages.

The amendment was not sponsored by the Government. Rather it was introduced in the Senate by Senator Girard of Manitoba who stated that this was desirable because there were as many French as English people in the Territories; see Debates of the Senate, 1877, at p. 319 (the debate is reproduced by Belzil J.A. (dissenting) in R. v. Lefebvre (1986), 48 Alta. L.R. (2d) 124, at p. 138); see also Debates of the House of Commons, 1905, at p. 8576 (Laurier), and at p. 8607 (Brodeur). The amendment was rather grudgingly accepted by the Government when it came up for consideration in the House of Commons in order to avoid delaying the Bill for another session (see Debates of House of Commons, 1890, at p. 1002

[Page 251]

(Watson)). But there is no suggestion that the Government had any objection to the amendment as such. Rather, as Mr. Mills, speaking for the Government, stated, it regretted the amendment because it had thought this was a matter best left to the Council in question; see Debates of the House of Commons, 1877, at p. 1872; see also the Debates of 1905 at p. 8531 (Monk). This policy was probably grounded in the dominant attitude in Quebec that language rights should be left to the local governments rather than to Parliament; see in this context A. I. Silver, The French-Canadian Idea of Confederation, 1864-1900 (1982), esp. cc. 7-10.

There appears to be a suggestion in the factums of the respondent and the Attorney General for Alberta that s. 110 was in some way inextricably linked with the language guarantees in s. 133  of the Constitution Act, 1867 . I am unable to fully understand the basis of this argument. If section 133 applied, it would apply proprio vigore. If the courts of the North-West Territories are courts for the better administration of the laws of Canada under s. 101  of the Constitution Act, 1867 , then s. 133 applies to them without more. If it does not apply to these courts, there is no requirement in s. 133 for Parliament to enact a provision like s. 110. I have combed the appropriate pages of Hansard and have found nothing that would lead to the view that s. 110 was enacted to give effect to s. 133, although some years later Laurier stated that one of the reasons s. 110 was not repealed in 1890 was that s. 133 guaranteed similar rights in relation to the courts; see Debates of the House of Commons, 1905, at p. 8579. Indeed, the impression one gets is that at the time s. 110 was enacted, s. 133 was thought to have no application for, as we saw, Mr. Mills who made the motion in the House concurring in the Senate amendment, stated that he regretted that the amendment had been made because they (the Government) had thought that this was a matter which was better left to the Territorial Council. However that may

[Page 252]

be, s. 110 was separately enacted by Parliament and continued in its own right.

The notion that the local authorities might legally deal with these language issues is not really surprising. Certainly, the language of debate in the Assembly was not covered by s. 133  of the Constitution Act, 1867 , since that provision was in this regard aimed specifically at the federal Parliament and the Quebec Legislature. So far as the languages to be used in the courts and in statutes are concerned, it is true that in time this Court, using Lord Sankey L.C.'s "living tree" analogy (from Edwards v. Attorney-General for Canada, [1930] A.C. 124 (P.C.)), extended the requirements of s. 133 to administrative tribunals and regulations in Attorney General of Quebec v. Blaikie, [1979] 2 S.C.R. 1016, at p. 1029. But it must be remembered that in 1877 the living tree was a mere sapling. Besides there is a world of difference between mere appendages of the federal and Quebec governments and vast quasi-separate areas possessing democratic institutions for their governance, and it is altogether natural that the statesmen of the time might not have viewed the matter in this expansive light. It should be noted that there had been sufficient doubt regarding the application of federal laws to the Territories to prompt the Imperial Parliament in 1871 to expressly confer on the Canadian Parliament power to make laws for the administration, peace, order and good government of any territory not for the time being included in any province; see s. 4 of the Constitution Act, 1871. This broad power would include the establishment of courts for the administration of law in the Territories, a matter of considerable significance when it is observed that s. 133 is in terms confined to "any Court of Canada established under this Act", i.e., the Constitution Act, 1867  (specifically the courts established under s. 101 for the administration of the laws of Canada) and the courts of Quebec. It is by no means self-evident, therefore, that s. 133 had any application to the Territories. What is clear is that the historical forces that engendered s. 110

[Page 253]

were quite separate from those which resulted in the language compromise of 1867 regarding federal and Quebec governmental institutions (s. 133).

Some have suggested that there is a specific connection between s. 110 and the demands of the settlers at the time of the transfer of the Territories to Canada. Thus during the debates preceding the Saskatchewan Act, Mr. Monk (Debates of the House of Commons, 1905, at pp. 8530 et seq.) stated that s. 110, like s. 23 of the Manitoba Act, 1870, was made in response to the demands made by the people in the Territories, but others have contested it (id., at p. 8548 (Lemieux)). The justifications given by its sponsor, Senator Girard, to the effect that this was desirable on the grounds of justice because there were as many French as English people in the Territories must have been seen as reason enough at the time. It is right to say, however, that this consideration could not have been completely foreign to those to whom it applied, for it would appear that many of the French speaking Manitobans who had made the list of demands before Manitoba was created had moved to that portion of the Territories that is now Saskatchewan and Alberta (see Belzil J.A., dissenting, in R. v. Lefebvre, supra, at p. 137, dealing with the parallel situation in Alberta; Silver, op. cit., at p. 132, states that French settlement from outside the Prairies after Confederation was not extensive; see also Wade, op. cit., at p. 405).

The 1877 amendment was re-enacted in 1880 as s. 94 of The North-West Territories Act, 1880, S.C. 1880, c. 25, and became s. 110 of c. 50 of the Revised Statutes of Canada of 1886. The law, however, remained substantially as it was before. In early 1890, however, a Bill was introduced by Mr. Dalton McCarthy for the removal of the provisions regarding the French language; see

[Page 254]

Debates of the House of Commons, 1890, esp. at pp. 756 (Cockburn) and 857 (McCarthy). As counsel for the Attorney General for Alberta noted, this Bill was viewed by its sponsor as simply the first step in a process the ultimate goal of which was the elimination of the French language throughout the country, a process which incidentally included the attempted abolition by Manitoba of the language guarantees in s. 23 of the Manitoba Act, 1870. For a variety of reasons, however, the Government refused to accept the whole of Mr. McCarthy's proposal, but it did agree to the addition of a proviso empowering the Legislative Assembly to regulate its proceedings and the manner in which these proceedings should be recorded and published. Section 110 thus took the form above quoted; see S.C. 1891, c. 22, s. 18. Pursuant to this proviso, the Territorial Assembly appears to have passed a resolution in 1892 providing that its proceedings should be in English only, but there is doubt whether that resolution was valid because the proper procedural steps were not followed; see Sheppard, op. cit., at p. 85. It is irrelevant for the purposes of this appeal to look further into the matter, however, because the proviso does not relate to the statutes nor to proceedings in court.

Reference may also be made to the fact that in 1886, The North-West Territories Act was amended (S.C. 1886, c. 25, s. 3) to provide for the reception of English law in the Territories as of 1870. Absent other legislation, this would have had the effect of incorporating in territorial law a British statute of 1731 (4 Geo. 2, c. 26) which provided that all proceedings in the courts of England and Scotland shall be in the English tongue only, but this, of course, could not take place in the face of the express provision in s. 110, so this statute never became part of the law of the North-West Territories and in consequence never became part of the law of Saskatchewan. The proposition that English statutes which were repealed, or never came into effect in the Territories, somehow revived in Saskatchewan or Alberta has been repeatedly rejected by the courts; see

[Page 255]

Toll v. Canadian Pacific Railway Co. (1908), 8 W.L.R. 795 (Alta. C.A.); Schultz v. Wolske (1966), 75 W.W.R. 411 (Alta. S.C.); Stevens v. Quinney (1979), 101 D.L.R. (3d) 289 (Sask. Q.B.)

No further legislative development took place before the establishment of Saskatchewan in 1905. It is true, as the respondent maintained, that French in fact ceased to be used in the debates, statutes and proceedings in the courts in 1892 (see Sheppard, op. cit., at p. 83), some years before the establishment of the province, but statutes do not, of course, cease to be law from mere disuse. As Driedger puts it, "A statute is not effaced by lapse of time, even if it is obsolete or has ceased to have practical application"; see E. A. Driedger, The Composition of Legislation (2nd ed. rev. 1976), at p. 110. At all events, it does not strike me as a particularly attractive argument to put before a court of justice that a majority can destroy the rights of a minority by simply acting in violation of those rights. Thus, at least as it relates to the language of statutes and proceedings in the courts, s. 110 remained fully in effect at the establishment of the province of Saskatchewan. All the courts that have had occasion to deal with the issue are in accord with this statement; see, in addition to the courts below in this case, R. v. Tremblay (1985), 20 C.C.C. (3d) 454 (Sask. Q.B.); Reference re French Language Rights of Accused in Saskatchewan Criminal Proceedings, [1987] 5 W.W.R. 577 (Sask. C.A.) in Saskatchewan, and in Alberta where a parallel situation exists, Paquette v. R. in Right of Canada (1985), 40 Alta. L.R. (2d) 38 (Q.B.), aff'd (1987), 55 Alta. L.R. (2d) 1 (C.A.); R. v. Lefebvre (1982), 21 Alta. L.R. (2d) 65 (Q.B.), aff'd (1986), 48 Alta. L.R. (2d) 124 (C.A.)

The real question, then, is whether s. 110 was continued in Saskatchewan by the Saskatchewan Act in 1905. In approaching this issue, all the parties placed considerable reliance on the debates

[Page 256]

on the language question that took place in the House of Commons. For example, counsel for the Attorney General for Alberta drew attention to the remarks of Sir Wilfrid Laurier that having regard to the small French population in the Territories he could not argue in favour of a right to the official use of French (Debates of the House of Commons, 1905, at p. 8577). But this remark, made in the course of the debate on a motion by Mr. Monk to entrench French and English, cannot really be read as supporting the view that the Saskatchewan Act was not meant to continue the existing situation. What he appears to have meant was that this was a matter to be left to the provincial legislature to deal with as it saw fit. This, in fact, was what the debate was about. Monk and Henri Bourassa, particularly, were convinced that if the province were given the power, it would abolish the language guarantees (see id., at pp. 8850-51).

The prevailing view, however, was that the language provisions should not be entrenched so that the legislatures would be free to deal with the matter. Laurier himself stated that "When those courts shall have become provincial, we shall no longer have jurisdiction over them, and therefore the legislature will have the right to deal with the language in the courts as well as in the legislature" (id., at pp. 8579-80). The Minister of Justice, Mr. Fitzpatrick, made the position clear. In speaking regarding s. 16 of the Alberta Act, S.C. 1905, c. 3 (which is identical to s. 16 of the Saskatchewan Act), he remarked that the provision was intended to maintain the existing conditions relating to the laws (id. at p. 8240). Speaking specifically of s. 110 he expressed the opinion at p. 8242 that if

[it] is carried forward … it would be the law as they will have it in the province after this constitutional Act is passed. Then of course, it would become subject to the control of the local legislature, and it will be a matter to be dealt with by them; and I say emphatically, … that is my intention. That is, the matter as I view it, ought to be dealt with by the local legislature…

[Page 257]

This appears to have been the understanding on both sides of the House; see id., at pp. 8531, 8843, 8850.

As I indicated, however, while legislative history may be useful in providing the backdrop and assisting in determining the purpose of legislation, the interpretation of the statute must in this as in other contexts be determined by the words used by the legislature to convey its intent. As will be seen, however, I agree with the opinion expressed by the then Minister of Justice and, for that matter, with that of Sir Wilfrid Laurier.

Continuation of Laws Under the Saskatchewan Act

One would assume that Parliament, in carving out the province of Saskatchewan out of the North-West Territories, would provide for the general continuation of laws except in so far as these were inconsistent with the province's constituent Act. As well, since Parliament would not expect these laws to continue forever, it would empower Parliament or the legislature, in accordance with the division of legislative power, to repeal or amend such laws.

That is precisely what s. 16 of the Saskatchewan Act does. It provides that "All laws . .. existing immediately before the coming into force of this Act in the territory hereby established as the province of Saskatchewan, shall continue in the said province as if this Act and The Alberta Act had not been passed". Then, as one would expect, s. 16 goes on to provide that these pre-existing laws are to apply only in so far as they are not inconsistent with anything in the Saskatchewan Act or as to which that Act contains a substitute therefor, and empowers the appropriate legislature to repeal or amend such laws.

Section 110 was a law at the establishment of the province and, therefore, barring other considerations, it continued in operation in the province. Is there anything in the Act, then, that is either inconsistent with or intended as a substitute

[Page 258]

for s. 110? It was argued, and on this point the trial judge and the majority of the Court of Appeal agreed, that s. 16 did not operate to continue the provisions of s. 110 that related to the Territorial Assembly. This argument, however, seems to me to involve a misunderstanding of the nature of provisions for the continuation of laws. In according rights to persons to speak English or French in 1877, the legislation necessarily had to be addressed to the then existing institutions—the Territorial Assembly and the courts in the Territories. To continue the laws establishing these rights, which s. 16 generally purports to do, it was obviously necessary to apply them to the successor institutions.

Precedents for thus applying existing laws to newly created institutions are not lacking. Indeed, in this specific area, the English Act of 1731, already mentioned, which provided that proceedings are to be conducted in the English tongue, is specifically confined to the "Courts of Justice within that Part of Great Britain, called England, and … the Court of Exchequer in Scotland". So much was this provision considered to be of local application that it required an express amendment to extend it to Wales; see Robert W. Kerr, "Regina v. Murphy and Language Rights Legislation" (1970), 20 U.N.B.L.J. 35, at p. 37. Yet the courts in several provinces have found no difficulty in applying this provision to their courts; see R. v. Murphy (1968), 69 D.L.R. (2d) 530 (N.B.C.A.); Re Poulin (1968), 64 W.W.R. 705 (B.C.S.C.)

That the various "laws, orders and regulations" continued by s. 16 would not be out of place in their application to the new legislature is evident from the fact that this new body functioned in much the same way as the Territorial Assembly. Section 14 of the Saskatchewan Act so provides in the following terms:

14. Until the said Legislature otherwise determines, all the provisions of the law with regard to the constitu-

[Page 259]

tion of the Legislative Assembly of the North-West Territories and the election of members thereof shall apply, mutatis mutandis, to the Legislative Assembly of the said province and the election of members thereof respectively.

Indeed I am inclined to think that the broad wording used in this provision was intended to cover in a general and comprehensive way the laws governing the operation of the legislature. Parliament obviously intended to avoid the elaborate 19th century phraseology in which these matters are couched in the Constitution Act, 1867  in relation to the House of Commons and the Legislatures of Ontario and Quebec, and chose instead to adopt an approach similar to that employed in that Act in relation to the Legislatures of Nova Scotia and New Brunswick, which simply provided that the constitution of their legislatures should continue, relying for the rest on the general provision for the continuance of laws. Put briefly, I am of the view that, either by virtue of s. 14 alone or read in conjunction with s. 16, the Saskatchewan Act provided for the continuance of all laws governing the legislature that were not inconsistent with the Act in the same way as other laws. There is, no doubt, some overlap but it was necessary for Parliament to deal expressly with the Legislature and it was natural, if only as a matter of caution, to expressly provide for continuity here in a manner similar to the Constitution Act, 1867 .

In considering a statute like the Saskatchewan Act, which established a new province and accorded it broad legislative powers, we constantly need to remind ourselves of Marshall C.J.'s admonition "that it is a constitution [that] we are expounding"; M'Culloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819), at p. 407. The incongruous results that can flow from interpreting constitutional instruments in a narrow and restricted manner can be exemplified by Strachan v. Lamont (1906), 4 W.L.R. 411, upon which the respondent relied and by which the Court of Appeal felt bound. The case dealt with a controverted election following the first election of members to the new Saskatchewan Legislature. A majority of the court held that the

[Page 260]

Controverted Elections Ordinance of the North-West Territories had not been continued either under s. 14 or s. 16 of the Saskatchewan Act. Chief Justice Sifton first stated that he thought it a serious objection "that the Ordinance … referred in specific terms to a body, The Legislative Assembly of the North-West Territories', which was no longer in existence, and the only power it gave the Court was to remove and in some cases replace a member of that assembly" (pp. 412-13). He went on to say that the word "constitution" in s. 14 of the Saskatchewan Act did not cover all laws in any way affecting the legislature and that the word "election" applied to provisions for electing members to the legislature, not to those for removing them when elected.

Nor in Sifton C.J.'s view would s. 16 of the Act cover the election or removal of members. That section, he opined, did not apply to "special legislation" as was evident from the fact that s. 14 explicitly dealt with the legislature and that s. 16(3) continued the existence of all societies and professional associations.

I find the judgment difficult to follow. Obviously, a new legislature had to be created and it was not unnatural for Parliament to indicate how the relevant pre-existing laws were to apply to this new institution, and this it did, either under s. 14 or s. 16. Similar provisions incidentally were made in respect of the Lieutenant-Governor and the Executive Council (see s. 10). A general intent to continue all laws is indicated. The structure of the Act, in fact, is not unlike that appearing in the Constitution Act, 1867 .

The express continuation of institutions, such as professional societies, which appears to have troubled Sifton C.J., is not really surprising. All existing institutions of, or deriving from, government

[Page 261]

appear to have been expressly continued. Though the general provision for the continuation of laws would probably have been sufficient to carry these forward, many of these provisions may have been added either out of an abundance of caution or, as in the case of the legislature or joint stock companies (s. 16(4)), because it was thought necessary to deal with these institutions for some specific purpose. Thus in the case of the professional societies (s. 16(3)), which Sifton C.J. used to support his notion of "special legislation", it was provided that they could be abolished by the Governor in Council, not the Lieutenant-Governor in Council as one would otherwise think would be the case. What is abundantly clear, as one would expect, is that the Act provides for a general continuation of laws and institutions except as otherwise dealt with in the Act, it being left to the appropriate legislature, in express terms in almost every section, to deal with them later as it saw fit.

Generally, I have grave difficulty understanding what would be comprehended by the term "special legislation" and how such a concept can be read into the legislation, which makes it clear that all laws were continued unless inconsistent with the Act or unless they were subsequently repealed. The term nowhere appears in the Act, and it is significant that no such concept has ever developed under s. 129  of the Constitution Act, 1867 . This judicially invented concept is quite indefinable. Why, for example, provisions for controverted elections should be special and not continued, thereby leading to a serious hiatus in the law is difficult to fathom. Wetmore J. expressed the same sentiment in Strachan, at p. 415. "I cannot", he said, "bring my mind to the conclusion that Parliament intended by the Act in question to compel the Assembly of the province to resort to the old mode of trying out controverted elections by means of the Assembly, or a committee thereof, and not avail themselves of the machinery which was in force in the Territories relating to the Territorial Assembly for the purpose of trying out such controverted elections." Despite this, Wetmore J., however, went on to agree with Sifton

[Page 262]

C.J. What this reveals, as I indicated earlier, is an approach to statutory interpretation that is wholly out of place in the construction of constitutional instruments.

The proper approach, it seems to me, would have been to interpret the statute broadly to effect the obvious and sensible purpose of Parliament to continue existing laws until the new legislature could turn its mind to them. I, therefore, much prefer the views of the dissenting judge, Scott J., who, though somewhat uncertain about whether "election" should cover controverted elections, thought "the word 'constitution' in sec. 14 must be construed as referring to the whole body of the laws … which relate not only to the creation and organization, but also all those relating to its powers, duties, and privileges, and all the limitations with respect thereto which have been enacted by the territorial legislature itself, or by a superior legislative body" (p. 417). (Emphasis added.) But even the narrow interpretation of the majority will not assist the respondent here, for Sifton C.J. explicitly recognized that an ordinance that dealt with "the number of legislators, quorum, election of Speaker, rules for conduct, etc., and generally with the constitution of the Assembly" (emphasis added) fell within the words "with regard to the constitution" in s. 14 (p. 414). It seems to me that the language of debates and records and of the statutes plainly fall within this general description and that the approach applies, a fortiori, to a provision, like s. 110 of The North-West Territories Act, enacted by Parliament itself to govern the matter. This method of approach is entirely consistent with what this Court has had to say about the meaning of provincial constitution in Attorney General of Quebec v. Blaikie, supra, at pp. 1023-24, and OPSEU v. Ontario (Attorney General), [1987] 2 S.C.R. 2, per Beetz J., at pp. 37-47.

[Page 263]

I conclude, then, that the Strachan case was clearly and fundamentally wrong and should be overruled. I am at a loss to see what difference the Saskatchewan Legislature's relying upon it could have made, though I rather doubt if much reliance has been placed on it over the years. It is interesting that it has seldom been referred to in other cases and in none would it be of assistance for present purposes.

No other argument was made that any provision of the Saskatchewan Act was inconsistent with s. 110 of The North-West Territories Act or intended as a substitute for it. Nor, even on the assumption that such an amendment could be made without complying with s. 110 (a matter I will discuss later), have we been directed to any amendment of the provisions of that section regarding the language of the statutes. The Legislative Assembly Act, S.S. 1906, c. 4, did not, pursuant to s. 14 of the Saskatchewan Act, exclude the application of s. 110. It follows that s. 110 continues in effect and that the statutes of Saskatchewan must be enacted, printed and published in English and French.

The foregoing reasoning applies a fortiori to the courts, which are expressly continued by s. 16 of the Saskatchewan Act. As Bayda C.J.S., speaking for the majority of the Court of Appeal, observed, the law "pertaining to languages, is not tied to a special institution" in that part of s. 110 dealing with the courts. I agree with him, therefore, that "[t]his means that different courts can come and go but the law remains and applies irrespective of those comings and goings." Belzil J.A. in R. v. Lefebvre, supra, at pp. 140-41, observed that this is, in fact, what happened before the enactment of the Saskatchewan Act. When section 110 was first passed, he stated, the courts which the provision affected were those of the stipendiary magistrates, but when these were replaced by the Supreme Court of the North-West Territories the provision continued to apply to it. In like manner, s. 110 continued to apply when the latter court was replaced by the Supreme Court and other courts of the province. It should be remembered that when the Supreme Court of the Territories was con-

[Page 264]

tinued in the province, it did so no longer as a territorial court but as a Saskatchewan court. It was disestablished in what remained of the territories by The North-West Territories Amendment Act, 1905, S.C. 1905, c. 27, ss. 2 and 8, enacted on the same day as the Saskatchewan Act. The subsequent restructuring of the courts in no way changed the law applicable generally to all courts. It is interesting that the courts of Saskatchewan feel they have sufficient bilingual capacity to conduct criminal trials in French or could with little difficulty be organized to do so; see R. v. Tremblay, supra, at pp. 464-65; Reference re French Language Rights of Accused in Saskatchewan Criminal Proceedings, supra, at pp. 619-20.

It will be obvious that I do not accept that s. 110 was somehow intended as a purely transitional measure. Provisions like s. 16 of the Saskatchewan Act continue statutes until repealed. We have countless laws that continue to this day by virtue of s. 129  of the Constitution Act, 1867 . In this general context, it is interesting that Laskin C.J.C. in Attorney General of Canada v. Canadian National Transportation, Ltd., [1983] 2 S.C.R. 206, at pp. 224-25, noted that the prosecutorial power of provincial Attorneys General in criminal law matters continued for some twenty-five years by virtue of that provision.

It must also be underlined that no mention is made of language at all in the various Acts that restructured the Saskatchewan judicial system, so it is not easy to see how there could be an implied repeal of s. 110. As I have already mentioned as well, it is also not easy to understand how English would have become the language of the courts by virtue of the 1731 English statute mentioned

[Page 265]

above. That statute never became law in the Territories, since any existing law on the language of the courts was impliedly repealed by s. 110 which fully covered the subject-matter, and no statute so repealed comes into force by the mere fact that the repealing statute is itself abrogated. There was, therefore, no law regarding the language of the courts to be continued other than s. 110.

All there is left, then, to establish an inference that English is the language of the courts is that certain rules of court and court forms were written on the assumption that the judicial system would operate in English. But that is the same assumption, and the same reality, that prevailed before these rules were enacted and, indeed, before the Saskatchewan Act came into effect when, for reasons already given, there can be no doubt that s. 110 was the law. Apart altogether from this, can it be supposed that a rule of law so deeply rooted in the history of this country could be swept away by a side wind like the preparation of court forms and the like? How could a statute, particularly one so fundamental as this, be repealed in this fashion? This is very far, indeed, from the stringent tests that have been established to warrant a holding that a statute has been impliedly repealed. As the court put it in The India (1865), 12 L.T.N.S. 316, at p. 316, a prior statute is repealed by implication only "if the entire subject-matter has been so dealt with in subsequent statutes that, according to all ordinary reasoning, the particular provisions in the prior statute could not have been intended to subsist"; see also Seward v. The "Vera Cruz" (1884), 10 App. Cas. 59 (H.L.), at p. 68; E. A. Driedger, Construction of Statutes (2nd ed. 1983), at p. 234.

The last point I have made, and indeed the argument regarding continuity generally, are powerfully reinforced by the rules regarding the manner in which rights of this kind should be approached. I begin with the well-established prin-

[Page 266]

ciple that statutes are not to be read as interfering with vested rights unless that intention is declared expressly or by necessary implication. Duff C.J. in Spooner Oils Ltd. v. Turner Valley Gas Conservation Board, [1933] S.C.R. 629, put it this way, at p. 638:

A legislative enactment is not to be read as prejudicially affecting accrued rights, or "an existing status" (Main v. Stark (1890), 15 App. Cas. 384, at 388), unless the language in which it is expressed requires such a construction. The rule is described by Coke as a "law of Parliament" (2 Inst. 292), meaning, no doubt, that it is a rule based on the practice of Parliament; the underlying assumption being that, when Parliament intends prejudicially to affect such rights or such a status, it declares its intention expressly, unless, at all events, that intention is plainly manifested by unavoidable inference.

See also Driedger, Construction of Statutes, op. cit., at pp. 183-85.

I should observe here that while s. 110 governs procedural matters, it does not serve merely procedural ends. It embodies procedural rules that give rights to individuals and, in fact, those rules are to some extent framed in terms of rights. "Either the English or French language", s. 110 reads, "may be used by any person in the debates of the Legislative Assembly of the Territories and in the proceedings before the courts" (emphasis added). As well, the printing of the records and the enactment, printing and publishing of the statutes in both languages are not purely mechanical rules of procedure but are obviously intended for the benefit of the individuals who use those languages. As this Court noted in Reference re Manitoba Language Rights, supra, at p. 744, in speaking of the duty imposed by the similarly worded s. 23 of the Manitoba Act, 1870: "This duty protects the substantive rights of all Manitobans to equal access to the law in either the French or the English language." They are language rights or language guarantees as all the cases in this Court from Jones v. Attorney General of New Brunswick, [1975] 2 S.C.R. 182, to Société des Acadiens du Nouveau-Brunswick Inc. v. Association of Parents for Fairness in Education, [1986] 1 S.C.R. 549,

[Page 267]

make clear. A parallel situation exists in other areas of procedural law. Thus most of the rules of evidence are directed at purely procedural purposes, but others are aimed at protecting certain institutions; for example, the rule against compelling spouses from testifying against one another serves no procedural end but is grounded in the desire to protect the marital relationship; see Hoskyn v. Metropolitan Police Commissioner, [1979] A.C. 474 (H.L.), per Viscount Dilhorne, at p. 494 and Lord Salmon, at p. 495.

The remarks I have referred to in the Spooner case, supra, respecting vested rights had reference to mere property and financial concerns. The courts, and particularly this Court, have expressed themselves in even stronger terms in the area of law giving expression to human rights which it has treated as being of an almost constitutional nature. Repeal of such laws requires "clear legislative pronouncement", to use McIntyre J.'s words in Winnipeg School Division No, I v. Craton, [1985] 2 S.C.R. 150, at p. 156. He there set forth the proper approach to such legislation in the following passage at p. 156:

In any event, I am in agreement with Monnin C.J.M. where he said:

Human rights legislation is public and fundamental law of general application. If there is a conflict between this fundamental law and other specific legislation, unless an exception is created, the human rights legislation must govern.

This is in accordance with the views expressed by Lamer J. in Insurance Corporation of British Columbia v. Heerspink, [1982] 2 S.C.R. 145. Human rights legislation is of a special nature and declares public policy regarding matters of general concern. It is not constitutional in nature in the sense that it may not be altered, amended, or

[Page 268]

repealed by the Legislature. It is, however, of such nature that it may not be altered, amended, or repealed, nor may exceptions be created to its provisions, save-by clear legislative pronouncement. To adopt and apply any theory of implied repeal by later statutory enactment to legislation of this kind would be to rob it of its special nature and give scant protection to the rights it proclaims. In this case it cannot be said that s. 50 of the 1980 consolidation is a sufficiently express indication of a legislative intent to create an exception to the provisions of s. 6(1) of The Human Rights Act.

If human rights legislation can be said to be fundamental or almost constitutional, it is at least equally true of the legislation at issue here; for many years it was entrenched, so far as the inhabitants of the area to which it applied were concerned, since it could only be removed by Parliament, not the local legislature, something, it will be remembered, Parliament had refused to do. It formed part of the basic law of a vast area of this country from the earliest days of the founding of the nation and is rooted in a deeply sensitive reality recognized in the Canadian Charter of Rights and Freedoms , which, among our fundamental constitutional values, sets forth that English and French are the official languages of this country (s. 16(1)).

It can hardly be gainsaid that language is profoundly anchored in the human condition. Not surprisingly, language rights are a well-known species of human rights and should be approached accordingly; see International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI), 21 U.N. GAOR, Supp. (No. 16) 52, U.N. Doc. A/6316 (1966), art. 27; M. Tabory, "Language Rights as Human Rights" (1980), 10 Israel Y.B. on Human Rights 167. A majority of this Court in Société des Acadiens, supra, at p. 578, clearly expressed the view that "language rights belong to the category of fundamental rights" (per Beetz J.), a view the Court had earlier expressed in Reference re Manitoba Language Rights, supra, in the following passage at p. 744:

[Page 269]

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.

The Court in the latter case went on at pp. 744-45 to underline the judiciary's responsibility to protect the language rights given under s. 23 of the Manitoba Act, 1870 and to ensure that the government complies with the Constitution. I also note the Court's observation that, given the similarity of that provision to s. 133  of the Constitution Act, 1867 , the range of application of these provisions should be parallel (pp. 743-44). Whatever power the legislature may have to alter the provision, the similarity of language and history of s. 110 would seem to call for the same approach.

I realize, of course, that, as in the case of other human rights, governmental measures for the protection of language rights must be tailored to respond to practical exigencies as well as to the nature and history of the country. But when Parliament or the legislature has provided such measures, it behooves the courts to respect them. Any inroads on them should be left to the legislative branch. This is particularly so of rights regarding the English and French languages, which are basic to the continued viability of the nation. As Dickson C.J. put it in Société des Acadiens, supra, at p. 564:

Linguistic duality has been a longstanding concern in our nation. Canada is a country with both French and English solidly embedded in its history. The constitutional language protections reflect continued and renewed efforts in the direction of bilingualism. In my view, we must take special care to be faithful to the spirit and purpose of the guarantee of language rights enshrined in the Charter .

While the Chief Justice's remarks were specifically addressed to Charter  protection, this comment is

[Page 270]

clearly relevant here. So too are his remarks relating to s. 16  of the Charter  which makes English and French the official languages of Canada. He stated, at p. 565:

Despite academic debate about the precise significance of s. 16, at the very least it provides a strong indicator of the purpose of the language guarantees in the Charter . By adopting the special constitutional language protections in the Charter , the federal government of Canada and New Brunswick have demonstrated their commitment to official bilingualism within their respective jurisdictions.

While Dickson C.J. was there speaking for himself, the majority judgment of Beetz J. also recognized that s. 16 contained "a principle of advancement or progress in the equality of status or use of the two official languages" (p. 579). Beetz J. differed with the Chief Justice in that for him it was the legislative, rather than the judicial process that was particularly suited to advance the principle. But section 110 is a legislative initiative consistent with that principle and, like other language guarantees, it must, as already mentioned, be respected by the courts.

In my view, therefore, s. 110 continued in effect in Saskatchewan after the establishment of that province either by virtue of s. 16(1) or of the combined effect of ss. 16(1) and 14. As noted earlier, this is entirely in accord with the legislative history of these provisions.

I shall now turn to the question whether s. 110 is entrenched in the sense that it cannot be unilaterally repealed by the province before entering into a discussion of what is comprised in the rights it guarantees.

Is Section 110 Entrenched?

The appellant took the position that s. 110 can only be repealed by virtue of an amendment to the Constitution of Canada made under s. 43  of the Constitution Act, 1982 , i.e., by resolutions of the Parliament of Canada and of the legislature of the

[Page 271]

province to which the amendment applies. I do not think this proposition can stand in the face of the express words of ss. 14 and 16(1) of the Saskatchewan Act, which clearly provide that the laws continued under the Act are subject to being repealed by the appropriate legislature. Not only is the province empowered to legislate respecting procedure in the courts under s. 92(14)  of the Constitution Act, 1867 ; it is also given power under s. 45  of the Constitution Act, 1982  to amend the constitution of the province. But that is not all. Parliament knew full well how to entrench a provision if it wished to do so, namely, by expressly providing for language rights in the Saskatchewan Act as it did in the case of s. 23 of the Manitoba Act, 1870. Such provisions, in common with s. 133  of the Constitution Act, 1867 , are constitutionally protected and do not fall within the province's legislative capacity to amend its constitution or otherwise; see Attorney General of Quebec v. Blaikie, supra, at pp. 1023-25.

The respondent also directed our attention to the fact that in dealing with separate schools, Parliament expressly provided, by s. 17 of the Saskatchewan Act, that s. 93  of the Constitution Act, 1867  should apply to the province with the substitution of other provisions for para. (1) of that section. That, however, seems to me to misconstrue the applicable provisions. As Judge Deshaye observed at trial, s. 93, like other general provisions in the Constitution Act, 1867 , was applied to Saskatchewan by virtue of s. 3 of the Saskatchewan Act; s. 17 of that Act was simply inserted to provide for the amendments there made. Section 110 of The North-West Territories Act, on the other hand, was continued by ss. 14 and 16 of the Saskatchewan Act and, therefore, subject to amendment or repeal pursuant to those provisions.

[Page 272]

For these reasons, I do not think s. 110 was entrenched after the Saskatchewan Act was passed. This, like my views regarding the continuation of s. 110, is entirely in accord with the legislative history of these provisions.

I turn now to the extent of the rights accorded under s. 110.

The Rights Under Section 110—The Courts

Many of the questions raised about the reach of the protections like those accorded under s. 110 have already been determined in recent cases before this Court either under s. 133  of the Constitution Act, 1867 , s. 23 of the Manitoba Act, 1870, or ss. 16 -18  of the Charter . All of these provisions are differently drafted but they use similar expressions and there has been a marked tendency to give them a similar interpretation; see, for example, the judgment of Beetz J. speaking for the majority in MacDonald v. City of Montreal, [1986] 1 S.C.R. 460; see also Reference re Manitoba Language Rights, supra.

The appellant argues, however, that this approach has no application to s. 110 so far as the languages of the courts are concerned. He notes, first of all, that while these other provisions provide that either the English or French language may be used by any person "in any Pleading or Process in or issuing from" any of the applicable courts, s. 110 provides that a person may use either of these languages "in the proceedings before the courts" (emphasis added). In his view, therefore, s. 110 is limited to procedures that take place before the courts. This, he continues, arose out of an historical context different from the political compromise that took place in 1867. He draws attention to the considerable bilingual capacity among the judges in the Territories when these Territories were transferred to Canada. The same system was maintained, the appellant argues, after such transfer.

[Page 273]

I am unable to attach the same significance as the appellant to this difference in phraseology. Permitting the use of a language in proceedings before the courts is just as easily capable of meaning that it may be used in the course of those proceedings, whether in pleadings before the court, or in written pleadings, or in issuing process. The provision was obviously modelled on s. 133 and though, like other provisions similarly modelled, it differs in form, one would naturally assume it to be aimed at achieving the same purpose. One cannot expect specific forms or particular words to be followed religiously. This is particularly so of a provision like this one, which was not originally introduced as a government measure. It is interesting that the proposer of the Bill, who appears to have confined his remarks to the legislative aspects, observed that "the majority of the people of the territories were French, and they had as much right to have their language acknowledged there as they had in Quebec and Manitoba …" Debates of the Senate, 1877, at p. 319. I conclude, therefore, that the language rights accorded by s. 110 are substantially the same as those accorded under these other provisions. I turn then to examine what has been said about these provisions in the various cases before this Court.

Turning first to the languages of the courts, it is settled by Société des Acadiens, supra, that while a person is constitutionally entitled to speak French in court in New Brunswick under s. 19(2)  of the Charter , he has no right to be understood in that language. The judge and all court officials may use English or French as they wish both in oral and in written communication; see also MacDonald v. City of Montreal, supra, at pp. 483 and 497. As I read Beetz J.'s judgment in Société des Acadiens, the appellant has no right to a translator, except as required for a fair trial either at common law or under ss. 7  and 14  of the Charter  (p. 577). The right to be understood is not a language right but one arising out of the requirements of due process. Beetz J. in Société des Acadiens carefully employs the word "power" to

[Page 274]

describe the language rights accorded an individual. He says, at p. 574: "They vest in the speaker or in the writer or issuer of court processes and give the speaker or the writer the constitutionally protected power to speak or to write in the official language of his choice" (emphasis added). At page 575, he contrasts this power to language provisions that provide for the right to communicate (s. 20  of the Charter ) or to be heard (s. 13(1) of the Official Languages of New Brunswick Act, R.S.N.B. 1973, c. O-1).

Applying these principles to the present case, it seems to me that the trial judge could, subject to what I shall have to say later about records, proceed with the trial in English. There is no evidence to indicate that the appellant needed the services of a translator to understand the proceedings, so a fair trial could be conducted without making a translation available from English to French. At all events, what the appellant sought throughout these proceedings was to vindicate his language rights, not the right to a fair hearing.

Counsel for the Freedom of Choice Movement, however, argued that the principle of equality in the use of language is breached by employing a translator to make a person understood by the trial judge. Such translation, he stressed, puts a person whose words must be translated in a far less favourable position than one who can be understood directly. However, it seems to me that this argument, too, was rejected by the majority of this Court in Société des Acadiens. There Beetz J. had this to say on the point at p. 580:

I do not think the interpretation I adopt for s. 19(2) of the Charter offends the equality provision of s. 16. Either official language may be used by anyone in any court of New Brunswick or written by anyone in any pleading in or process issuing from any such court. The guarantee of language equality is not, however, a guar-

[Page 275]

antee that the official language used will be understood by the person to whom the pleading or process is addressed.

Before I leave this question of equality however, I wish to indicate that if one should hold that the right to be understood in the official language used in court is a language right governed by the equality provision of s. 16, one would have gone a considerable distance towards the adoption of a constitutional requirement which could not be met except by a bilingual judiciary. Such a requirement would have far reaching consequences and would constitute a surprisingly roundabout and implicit way of amending the judicature provisions of the Constitution of Canada.

Beetz J. in that case at p. 574 and in MacDonald, supra, at pp. 500-501, was at pains to indicate that the right to due process, which is substantially what concerns the intervener, should not be linked with language rights because they are conceptually different, and the effect of doing so would involve the risk of distorting both rather than reinforcing either.

There is a matter regarding translation, however, that was not raised in Société des Acadiens but that does arise in this case. In the Société des Acadiens, the issue was whether the judge understood the appellant (which it was held he did). Beetz J., however, left to another day the issues regarding the reasonable means necessary to ensure that the members of the courts understand the proceedings. He also did not deal with the issue, which has some relation to the matters just mentioned, whether when proceedings are required by law to be recorded, a person using one or the other official language has the right to have his remarks recorded in that language. Nor did that issue arise in MacDonald, supra, or Bilodeau v. Attorney General of Manitoba, [1986] 1 S.C.R. 449. These cases were essentially addressed to whether processes validly made in one only of the official languages were required to be translated in the other. As already mentioned, however, it does arise in the present case, both as regards the

[Page 276]

making of a plea and the giving of evidence by the appellant.

In my view, the appellant's right or power to use French would be seriously truncated if recorded in another language. For his use of the language goes beyond the immediate forum. The proceedings, for example, may continue in the Court of Appeal where the judges may quite properly wish to refer to the exact words used by a person at trial, words that person has a right to use. Absent valid legislation requiring the recording of the appellant's statements in one language only, and none was brought to our attention, the appellant would seem to me to have a right to have his statements recorded in the French language. His situation, of course, differs from that of a person who uses a language other than English or French whose rights to translation derive solely from the requirements of due process.

The Rights Under Section 110—The Legislature

I now turn to the appellant's request that the hearing be delayed until the Clerk of the Legislative Assembly produce before the court the relevant statutes printed in the French language. By the manner in which this request was made, it is obvious that he sought valid statutes, not mere unofficial translations. On the basis of Attorney General of Quebec v. Blaikie, supra, it is clear that for the statutes to be valid they must have been enacted, printed and published in English and French. Since the relevant statutes have not been enacted, printed and published in English and French, it follows that they are invalid, unless a distinction can be drawn between the present case and Blaikie.

There is, of course, the difference that in Blaikie, the Court was dealing with an entrenched constitutional provision. But, in my view, while this difference is critically important in relation to

[Page 277]

the manner in which the legislature can alter the law, until it is altered, the legal situation is the same as under Blaikie. It is inconceivable to me that when s. 110 was enacted by Parliament, the Territorial Assembly could validly have ignored a provision in its constituent statute regarding the manner and form in which its laws must be enacted. An Ordinance enacted in violation of its requirement would clearly be invalid. That provision as to the manner and form of enactments was, we saw, continued in respect of the provincial legislature by ss. 14 and 16 of the Saskatchewan Act, the constituent Act of the province. A basic provision regarding the manner in which a legislature must enact laws cannot be ignored. I cannot accept that such a provision can be impliedly repealed by statutes enacted in a manner contrary to its requirements, particularly one that is aimed at an accommodation of an historically sensitive matter like the use of the English and French languages in this country. Since the manner and form of enactment (in English and French) was not entrenched, however, the provision may be modified or repealed, but such repeal or modification must be made in the manner and form required by law at the time of the amendment.

The law on this point was clearly stated by the Privy Council in Bribery Commissioner v. Ranasinghe, [1965] A.C. 172, in the following terms, at pp. 197-98:

[A] legislature has no power to ignore the conditions of law-making that are imposed by the instrument which itself regulates its power to make law. This restriction exists independently of the question whether the legislature is sovereign, as is the legislature of Ceylon, or whether the Constitution is "uncontrolled," as the Board held the Constitution of Queensland to be. Such a Constitution can, indeed, be altered or amended by the legislature, if the regulating instrument so provides and if the terms of those provisions are complied with: and the alteration or amendment may include the change or abolition of those very provisions. But the proposition which is not acceptable is that a legislature, once established, has some inherent power derived from the mere fact of its establishment to make a valid law by the

[Page 278]

resolution of a bare majority which its own constituent instrument has said shall not be a valid law unless made by a different type of majority or by a different legislative process. And this is the proposition which is in reality involved in the argument.

That case involved the obvious situation where the law provided for a two-thirds majority, but the Board chose to use general words because the principle goes well beyond the confines of that case. Sir Ivor Jennings, one of the great constitutional lawyers of this century, thought it applied even to the United Kingdom Parliament. For him, Parliament's power to enact any law it wishes is conditioned upon its doing so in the manner and form provided by law; see The Law and the Constitution (3rd ed. 1943), at pp. 138-45. It may alter that manner and form, as it did, for example, when it reduced the powers of the House of Lords to that of delay only, see the Parliament Act, 1911 (U.K.), 1 & 2 Geo. 5, c. 13, but it is not without interest that the House of Lords joined in enacting this statute. Jennings says, at pp. 144-45:

The powers of Parliament are not expressed in an Act of Parliament. Nevertheless it is admitted, as Dicey admits, that the powers do come from the law. The law is that Parliament may make any law in the manner and form provided by the law. That manner and form is provided, at present, either by the common law or by the Parliament Act of 1911. But Parliament may, if it pleases, provide another manner and form. Suppose, for instance, that the present Parliament enacted that the House of Lords should not be abolished except after a majority of electors had expressly agreed to it, and that no Act repealing that Act should be passed except after a similar referendum. There is no law to appeal to except that Act. The Act provides a new manner and form which must be followed unless it can be said that at the time of its passing that Act was void or of no effect.

In this country, a similar view has been espoused by Professor Peter W. Hogg, Constitutional Law of Canada (2nd ed. 1985), at pp. 262-64.

[Page 279]

For my part, I cannot accept that in a nation founded on the rule of law, a legislature is free to ignore the law in its constituent instrument prescribing the manner and form in which legislation must be enacted. That has always been the law in this country and in the Commonwealth generally. This was, it is true, usually justified under s. 5 of the Colonial Laws Validity Act, 1865 (U.K.), 28 & 29 Vict., c. 63; see, for example, Attorney-General for New South Wales v. Trethowan, [1932] A.C. 526 (P.C.) That provision empowered colonial legislatures to make laws respecting the constitution, powers and procedure of such legislatures, but to this was added a proviso "that such Laws shall have been passed in such Manner and Form as may from Time to Time be required by any Act of Parliament, Letters Patent, Order in Council, or Colonial Law for the Time being in force in the said Colony". It should be observed, however, that that statute, as the name implies, was enabling; it was aimed at validating colonial laws, not invalidating them. Parliament had deemed it wise to enact the statute because of a restrictive judicial interpretation of colonial legislative power in Australia; for the history of the Act, see K. C. Wheare, The Statute of Westminster and Dominion Status (5th ed. 1953), at pp. 74-79. Thus, the proviso was simply intended to ensure that power given by the operative part of s. 5 did not interfere with provisions regarding "manner and form" in the various legislative instruments governing colonial legislation; see, in this context, Harris v. Minister of the Interior, [1952] 2 S.A.L.R. (N.S.) 428 (Sth. Afr. App. Div.) where manner and form restrictions previously protected by the Colonial Laws Validity Act, were held to continue to apply to the Parliament of South Africa notwithstanding the attainment of that country to sovereignty and the consequent repeal of that Act in its application there.

As I see it, the statutes of Saskatchewan are invalid as not having been enacted in the manner and form required by its constituent statute. That being so, Saskatchewan finds itself in a position similar to that of Manitoba as declared in the

[Page 280]

Reference re Manitoba Language Rights case, supra. In that case, it was held that the unilingual Acts of the Legislature of Manitoba were invalid. The result of this, it was further held, is that, without more, there would be a legal vacuum with consequent legal chaos in the province (pp. 747-48). This would mean that in Saskatchewan the courts and all other institutions created by law under those statutes would be acting without legal authority in so far as they purport to exercise powers conferred by Saskatchewan statutes or Territorial Ordinances that, after 1877, were not enacted in English and French. Indeed as the Court in the Reference re Manitoba Language Rights, supra, further observed, questions regarding the validity of the present composition of the legislature might also be raised (p. 748).

In the Reference re Manitoba Language Rights, the Court, by resort to the principle of the rule of law and the de facto doctrine, found means to keep the existing laws temporarily in effect for the minimum period of time necessary for the statutes to be translated, re-enacted, printed and published in French. These matters are fully explained in that case and it is unnecessary for me to go into them except to say that the law enunciated in that case would generally apply to the present situation. Conforming to the procedure required for Manitoba would, of course, remedy the situation in Saskatchewan. There is, however, the important difference that s. 110, unlike s. 23 of the Manitoba Act, 1870, is not constitutionally entrenched, so re-enacting, printing and publishing all the provincial statutes or resorting to s. 43  of the Constitution Act, 1982  are not the only available solutions. The legislature has the power to amend its constitution by an ordinary statute, but in enacting such amending statute it must do so in the manner and form required by the law for the time being in force. This, we saw, requires that such statute be enacted, printed and published in the English and French languages. Accordingly, the legislature may resort to the obvious, if ironic, expedient of enacting a bilingual statute removing the restrictions imposed on it by s. 110 and then declaring all existing provincial statutes valid notwithstanding

[Page 281]

that they were enacted, printed and published in English only. Whichever option the legislature adopts, it must, consistent with the Reference re Manitoba Language Rights, act within a reasonable time. If it opts for translation, it must do so within the minimum period required. If it adopts the route of statutory repeal or modification, it must, having regard to the rule of law, undertake that step as soon as possible. It follows that the decision regarding the option it will take must also be made expeditiously.

Disposition

As I noted earlier, the appellant's requests at trial were three in number: that he be allowed to enter a plea in the French language, to have the trial proceeded with in that language, and to have the hearing delayed until the relevant statutes were produced in the French language. Since the law regarding the second and third requests have already been dealt with by this Court, I shall deal with these first.

It seems to me that many of the issues surrounding the second issue have already been dealt with in the Société des Acadiens case. The appellant was entitled only to use French, not to require others to do so. As to the request that a French version of the statutes be produced, this appears to be covered by the similar case of Bilodeau v. Attorney General of Manitoba, supra, in relation to s. 23 of the Manitoba Act, 1870. The majority of the Court there held that the principle of the rule of law would preserve the enforceability of the conviction of the appellant there, and if that were all I would be prepared to follow a similar course here.

There is, however, the additional point in the present case that the appellant requested to have his plea entered in French. This, as I have explained, he had a right to demand and failure to

[Page 282]

comply with his request in my view vitiates the trial. He sought to use French, and thus had a right to have his plea entered in French. His subsequent refusal to enter a plea later was consequential on this.

I would, therefore, allow the appeal with costs in this Court and in the Court of Appeal, and quash the conviction. I would reply to the constitutional questions as follows:

1. Does s. 110 of The North-West Territories Act (54 & 55 Vict., c. 22, s. 18) continue to apply, in whole or in part, to the province of Saskatchewan by virtue of s. 16 of the Saskatchewan Act?

A. Yes, in whole by virtue of ss. 14 and 16 of the Saskatchewan Act.

2. If the answer to Question 1 is affirmative, do the rights which are derived from s. 110 of The North-West Territories Act form part of the Constitution of Canada or can they be modified unilaterally by Saskatchewan and if so to what extent?

A. Saskatchewan may unilaterally modify s. 110 of The North-West Territories Act but such modification must be in the manner and form required by law at the time of such modification, currently by legislation in English and French.

3. If the answer to Question 1 is affirmative, does s. 110 of The North-West Territories Act require Saskatchewan to print its laws in English and in French?

A. Yes.

4. If the answer to Question 1 is affirmative, does s. 110 of The North-West Territories Act afford a party pleading in a court of Saskatchewan the right to use either English or French?

A. Yes.

5. If the answer to Question 1 is affirmative, does s. 110 of The North-West Territories Act require that the proceedings be conducted in English or French at the option of the accused or defendant?

[Page 283]

A. No, but statements in proceedings made in English or French must, when recorded, be in the language used in making the statement.

6. If the answer to Question 4 is affirmative, does the right to use either English or French before the courts of Saskatchewan include, by virtue of s. 110 of The North-West Territories Act, the right to be understood by the judge or judge and jury without the assistance of an interpreter or simultaneous translation?

A. No.

The reasons of Estey and McIntyre JJ. were delivered by

ESTEY J. (dissenting)—This appeal raises the question whether the province of Saskatchewan is required to provide for the use of the French language in proceedings before the Saskatchewan courts and to provide for provincial statutes printed in French, for the purpose of such proceedings. Because there are no language rights expressly prescribed for Saskatchewan in the Constitution Act, 1867 , as amended, the question before the Court in this appeal resolves itself to this: Does any right to a trial in the French language arise under the laws of the province of Saskatchewan by reason of the possible incorporation of s. 110 of The North-West Territories Act, R.S.C. 1886, c. 50 as amended by S.C. 1891, c. 22, s. 18, into the laws of Saskatchewan by s. 16(1) of the Saskatchewan Act, S.C. 1905, c. 42, or otherwise, and if there be such a right is there also a right, to receive in that connection applicable Saskatchewan statutes in the French language?

It may facilitate the examination of what follows in these reasons to outline the essential elements.

1. The action taken by the Parliament of Canada in the establishment of the province of Saskatchewan stands in sharp contrast to that taken at the time of the establishment of the province of Manitoba.

(a) Parliament, in the Saskatchewan Act, made provision for a new legislature, courts, and an educational system for the

[Page 284]

new province, and in so doing incorporated the laws of the North-West Territories into Saskatchewan where those laws were not inconsistent with or for which there was no substitute in the Saskatchewan Act.

(b) In so exercising its authority under the Constitution Act, 1871 (U.K.), 34 & 35 Vict., c. 28 (originally the British North America Act, 1871), Parliament refrained from establishing any language rights in the new province and indeed defeated a motion so to do.

(c) This is very different from the action taken by Parliament in 1870 when establishing the province of Manitoba under the Manitoba Act, 1870, S.C. 1870, c. 3. Parliament there expressly prescribed in s. 23 the language to be used in the legislature and in the courts of the province.

2. Language rights can only be found in the laws of Saskatchewan if s. 110 of The North-West Territories Act is brought into Saskatchewan by s. 16(1) or s. 14 of the Saskatchewan Act. This did not occur because:

(a) Section 3 of the Saskatchewan Act frees the province from s. 133  of the Constitution Act, 1867 , and empowers the new legislature there established in ss. 12 to 15 to adopt its own rules of language and to establish courts without reference to any language rights. The essence of the appellant's submission is that s. 16(1) of the Saskatchewan Act indirectly repealed s. 3 of the same Act by requiring the new legislature established by ss. 12 to 15 to operate under the regime of s. 133.

(b) The legislature established by ss. 12 to 15 inclusive of the Saskatchewan Act is a completely new institution and the laws relating thereto are in substitution for the laws relating to the legislature in the North-West Territories prior to 1905. To interpret either s. 14 or s. 16(1) as incorporating

[Page 285]

s. 110 into the laws of Saskatchewan would be to override s. 3 of the Saskatchewan Act and the constitutional powers thereby accorded to the new province and its legislature, including its freedom from s. 133. In any case, s. 14 could only act as a conduit for s. 110 if it is a law with regard to the "constitution of the Legislative Assembly of the North-West Territories". The language of use in the legislature is, at the most, a procedural element and not a constitutive element.

(c) The courts established in s. 16 by Parliament acting under s. 2 of the Constitution Act, 1871 are substitutes for the courts described in the laws of the North-West Territories and accordingly those laws relating to courts of the Territories are not, by the terms of s. 16(1), brought into the new province. These 'courts of Saskatchewan' were put in place to carry on a function under s. 92(14)  of the Constitution Act, 1867 .

(d) Section 110 by its terms relates to specific institutions, none of which have legally survived the transition to the province of Saskatchewan and so the section is spent. The Legislature of the North-West Territories was replaced under s. 12, the courts were replaced under s. 16, and the Supreme Court of the North-West Territories was disestablished by Parliament on the same day the Saskatchewan Act was enacted.

(e) Section 110 is inconsistent with the unfettered Constitution established for the new province under the Saskatchewan Act.

3. It is unnecessary to decide, for the purposes of this appeal, whether the courts of the North-West Territories, as they existed prior to the creation of the new provinces in 1905, were 'courts of Canada' to which s. 133  of the Constitution Act, 1867  would apply, whether those courts were established under s. 101  of the Constitution Act, 1867 , s. 4 of the Constitution Act, 1871, or otherwise.

[Page 286]

1. The Facts

The appellant, Father André Mercure, by information sworn on December 12, 1980, was charged with speeding on November 6, 1980, contrary to s. 139(4) of The Vehicles Act, R.S.S. 1978, c. V-3. On January 12, 1981, Father Mercure appeared in a proceeding before the Provincial Court for Saskatchewan presided over by His Honour Judge L. P. Deshaye. Before entering a plea, the appellant, whose native tongue was French, requested the trial judge to conduct the entire proceedings in French. He also requested to have the hearing delayed until the Clerk of the Legislative Assembly of Saskatchewan could provide him with five pertinent provincial statutes printed in French. On April 15, 1981, Judge Deshaye rendered a decision denying the application: (1981), 44 Sask. R. 43, [1981] 4 W.W.R. 435. Judge Deshaye held that the appellant did have the right to use the French language before the Provincial Court, but was not entitled to be provided with the relevant statutes printed in French. The right to the use of the French language before the court was restricted to the provision of an interpreter. The matter was then adjourned to April 24, 1981, at which time Father Mercure, when asked to enter a plea, indicated that he wished to stand mute. The judge entered a plea of not guilty. The trial was conducted entirely in English. The appellant did not testify at trial. The appellant was found guilty of the charge. No interpreter was present at the trial as the appellant took the position that having an interpreter translate the proceedings was not sufficient recognition of his right to use the French language before the court, and, in any event, he argued that he could not defend himself without access to the statutes printed in French.

Father Mercure appealed by way of stated case to the Court of Appeal for Saskatchewan. On October 28, 1985, the Court of Appeal dismissed the appeal: (1985), 44 Sask. R. 22, 24 D.L.R. (4th) 193, 23 C.C.C. (3d) 140, [1986] 2 W.W.R. 1. Father Mercure then sought and obtained leave to appeal to this Court. On April 29, 1986, Father

[Page 287]

Mercure died. This Court then authorized the intervener associations to continue this appeal as principal parties.

II. The Legislative History

The central issue of this appeal focusses upon the construction of s. 110 of The North-West Territories Act and s. 16(1) of the Saskatchewan Act. However, to provide an appropriate background for the interpretation of these statutes the legislative history of these two Acts must be considered. It should be understood at once that the courts are here largely engaged in statutory interpretation. There is no constitutional element in this process except in the indirect sense that the Constitution hovers over all discussion of the plenary powers of the two levels of government. It may be helpful for example to consider s. 133  of the Constitution Act, 1867 , and ss. 2, 4 and 6 of the Constitution Act, 1871. The task in construing the Saskatchewan Act, being an Act of Parliament, and certain related Saskatchewan statutes herein below identified, is not akin to the task which was before the courts when determining the use of language in the courts of the province of Manitoba. See Reference re Manitoba Language Rights, [1985] 1 S.C.R. 721. There the instruments before the courts were constitutional in nature. The issue had been made the specific subject of constitutional provisions, namely s. 23 of the Manitoba Act, 1870, and the Constitution Act, 1871. Nothing of that nature is here in issue.

In May 1670, King Charles II granted a charter to The Governor and Company of Adventurers of England trading into Hudson's Bay. Under the terms of this charter, the Hudson's Bay Company was granted "the sole trade and commerce" of all those territories watered by rivers flowing into Hudson's Bay. The charter also provided that the said land "be from thenceforth reckoned and reputed as one of His Majesty's Plantations or Colonies in America, called Rupert's Land". Prince Rupert was the first governor of the Company.

[Page 288]

The territory that is now comprised in the province of Saskatchewan was formerly a part of the lands known as Rupert's Land and the North-Western Territory, the latter being those British possessions lying north and west of Rupert's Land. The British North America Act, 1867 (now entitled the Constitution Act, 1867 ) by s. 146 authorized the Queen upon the advice of the Privy Council of the United Kingdom and on addresses from the Houses of Parliament of Canada to transfer to Canada both Rupert's Land and the North-Western Territory. The Order in Council was issued on June 23, 1870 (reprinted in R.S.C. 1970, App. II, No. 9). These lands were then administered under the Temporary Government of Rupert's Land Act, 1869, S.C. 1869, c. 3. Under the Manitoba Act, 1870, Manitoba became the first province to be carved out of this territory and given the status of a province under the Constitution Act, 1867 . This Canadian statute was confirmed and incorporated in the Constitution by the Parliament of the United Kingdom in the Constitution Act, 1871.

The power of the federal government to create provinces out of federal territories was not expressly conferred by the Constitution Act, 1867 . However, this power was granted retroactively (and the Manitoba Act, 1870, confirmed) by ss. 2 and 5 of the Constitution Act, 1871. The same Act, by s. 4, conferred upon the Parliament of Canada full legislative authority over those territories comprised in the Dominion of Canada but lying outside any province. In 1875, Parliament enacted The North-West Territories Act, 1875, S.C. 1875, c. 49, which provided that the lands known as Rupert's Land and the North-Western Territory (that is all the lands remaining after the creation of the province of Manitoba) would henceforth be known as the North-West Territories. This Act established a "Court of Civil and Criminal Jurisdiction" in the North-West Territories (s. 59) and established a Legislative Assembly of the North-West Territories (s. 13). The Act was silent as to the language or languages of the legislature and the courts.

[Page 289]

In 1877 an amendment to The North-West Territories Act, 1875 was adopted by Parliament (S.C. 1877, c. 7, s. 11) which provided for certain linguistic rights in the North-West Territories. At that time the size of the francophone population in the Territories, according to the undisputed submissions of the Attorney General for Saskatchewan, was almost as large as the anglophone population, numbering about 2900 and 3100, respectively. This amendment read as follows:

11. Either the English or the French language may be used by any person in the debates of the said Council, and in the proceedings before the Courts, and both those languages shall be used in the records and journals of the said Council, and the ordinances of the said Council shall be printed in both those languages.

In 1891 this section was amended (S.C. 1891, c. 22, s. 18) to provide the Legislative Assembly of the North-West Territories with the authority to "regulate its proceedings, and the manner of recording and publishing the same". This amendment enabled the Legislative Assembly to abrogate the use of French in the Legislative Assembly or in the publication of the proceedings of the Assembly, if it so desired. The right to use either French or English "in the proceedings before the courts" was not altered by this amendment.

110. Either the English or the French language may be used by any person in the debates of the Legislative Assembly of the Territories and in the proceedings before the courts; and both those languages shall be used in the records and journals of such Assembly; and all ordinances made under this Act shall be printed in both those languages: Provided, however, that after the next general election of the Legislative Assembly, such Assembly may, by ordinance or otherwise, regulate its proceedings, and the manner of recording and publishing the same; and the regulations so made shall be embodied in a proclamation which shall be forthwith made and published by the Lieutenant Governor in conformity with the law, and thereafter shall have full force and effect.

This section was in force in this form at the time of the passage of the Saskatchewan Act in 1905.

[Page 290]

The addition of the local authority proviso regarding language use in the Legislative Assembly coincided with the influx of settlers into the western plains. The demographics of the region changed dramatically commencing late in the century and took on the language characteristics which have continued to this day as shall be seen later in these reasons. To complete the story it should be noted that in January, 1892 the Legislative Assembly of the North-West Territories passed a resolution providing that its proceedings should be in the English language only. This resolution was not proclaimed in the manner prescribed in s. 110 and never became law.

In 1905 the provinces of Alberta and Saskatchewan were created by federal statutes. The sections of the Saskatchewan Act, mainly of concern here are:

3. The provisions of The British North America Acts, 1867 to 1886 [now the Constitution Acts, 1867 to 1886], shall apply to the province of Saskatchewan in the same way and to the like extent as they apply to the provinces heretofore comprised in the Dominion, as if the said province of Saskatchewan had been one of the provinces originally united, except in so far as varied by this Act and except such provisions as are in terms made, or by reasonable intendment may be held to be, specially applicable to or only to affect one or more and not the whole of the said provinces.

16. (1) All laws and all orders and regulations made thereunder, so far as they are not inconsistent with anything contained in this Act, or as to which this Act contains no provision intended as a substitute therefor, and all courts of civil and criminal jurisdiction, and all commissions, powers, authorities and functions, and all officers and functionaries, judicial, administrative and ministerial, existing immediately before the coming into force of this Act in the territory hereby established as the province of Saskatchewan, shall continue in the said province as if this Act and The Alberta Act had not been passed; subject, nevertheless, except with respect to such as are enacted by or existing under Acts of the Parliament of Great Britain, or of the Parliament of the United Kingdom of Great Britain and Ireland, to be repealed, abolished or altered by the Parliament of Canada, or by the Legislature of the said province, according to the authority of the Parliament or of the

[Page 291]

said Legislature: Provided that all powers, authorities and functions which under any law, order or regulation were, before the coming into force of this Act, vested in or exercisable by any public officer or functionary of the North-West Territories shall be vested in and exercisable in and for the said province by like public officers and functionaries of the said province when appointed by competent authority.

Stripping the non-essential words from s. 16(1) so as to make this complex and perhaps ungrammatical provision understandable, s. 16(1) reads as follows: "All laws … so far as they are not inconsistent with anything contained in this Act, or as to which this Act contains no provision intended as a substitute therefor, and all courts of civil and criminal jurisdiction … existing immediately before the coming into force of this Act in … Saskatchewan, shall continue in the said province … subject, nevertheless … to be repealed, abolished or altered by the Parliament of Canada, or by the Legislature … according to the authority of the Parliament or of the said Legislature…"

This general provision for the incorporation by reference of the laws of the North-West Territories into the new province of Saskatchewan, must be read and understood in the light of s. 14 of the Saskatchewan Act which specifically incorporated the North-West Territories laws constituting the Legislative Assembly of the North-West Territories, into the laws of Saskatchewan.

14. Until the said Legislature otherwise determines, all the provisions of the law with regard to the constitution of the Legislative Assembly of the North-West Territories and the election of members thereof shall apply, mutatis mutandis, to the Legislative Assembly of the said province and the election of members thereof respectively.

The Saskatchewan Act also established a legislature in the new province:

12. There shall be a Legislature for the said province consisting of the Lieutenant Governor and one House to be styled the Legislative Assembly of Saskatchewan.

[Page 292]

13. Until the said Legislature otherwise provides, the Legislative Assembly shall be composed of twenty-five members, to be elected to represent the electoral divisions defined in the schedule to this Act.

14. Supra.

15. The writs for the election of the members of the first Legislative Assembly of the said province shall be issued by the Lieutenant Governor and made returnable within six months after this Act comes into force.

By these comprehensive provisions the Parliament of Canada established a legislature for the new province being carved out of the North-West Territories. In the words of s. 16(1) of the Saskatchewan Act these provisions are "a substitute" for the laws of the North-West Territories relating to the Legislative Assembly of the Territories. Consequently, the laws incorporated into the new province by s. 16(1) do not include the laws of the Territories dealing with the Legislative Assembly of the North-West Territories, including that part of s. 110 which relates to the Legislative Assembly. The legislature, almost immediately upon its establishment by the Saskatchewan Act and the election of its members, proceeded to enact The Legislative Assembly Act, S.S. 1906, c. 4, under which the organization of the legislature of the province of Saskatchewan was completed.

This new legislature then in 1906 and 1907 abolished or replaced the courts which theretofore may have operated transitionally in the part of the North-West Territories which was included in the new province of Saskatchewan by virtue of s. 16(1) of the Saskatchewan Act. These new provincial courts were established by the following statutes: The Magistrates Act, S.S. 1906, c. 19; The Judicature Act, S.S. 1907, c. 8; The District Courts Act, S.S. 1907, c. 9; The Surrogate Courts Act, S.S. 1907, c. 10; The Police Magistrates' Act, S.S. 1907, c. 14; The King's Bench Act, S.S. 1915, c. 10; The Court of Appeal Act, S.S. 1915, c. 9; The Provincial Court Act, 1978, S.S. 1978, c. 42 (now R.S.S. 1978 (Supp.), c. P-30.1).

These enactments created new courts by the exercise of powers given the province under s.

[Page 293]

92(14) of the Constitution Act, 1867  which were made available to the new province by s. 3 of the Saskatchewan Act. The importation of the full panoply of provincial powers into Saskatchewan was clearly a 'substitute' for the judicature provisions of the North-West Territories.

Furthermore s. 3 of the Saskatchewan Act precludes the operation of s. 133  of the Constitution Act, 1867  within the province of Saskatchewan. The new province is therefore given full plenary powers to establish its courts and legislature as it sees fit free from any restrictions in s. 133. This direct and express grant of constitutional authority cannot be subject to derogation by a facilitative, transitional adoption of some laws of the North-West Territories.

With the exception of laws relating to the new institutions of the new province, the general law of the Territories was continued in Saskatchewan in transition until the new provincial legislature enacted appropriate private and public law.

III. The Course of Proceedings Herein to Date

This proceeding grew in a fashion now all too familiar to the courts. The issue which emerged from the opening of the trial was simply the use of the French language and French versions of certain statutes of Saskatchewan in the Provincial Court of Saskatchewan, in a proceeding relating to a charge under a provincial statute. The appellant at that stage of these proceedings asked for an adjournment of the hearing until the Clerk of the provincial legislative assembly produced for the assistance of the appellant in the conduct of the proceedings in the Provincial Court, five statutes printed and proclaimed in French: The Vehicles Act, R.S.S. 1978, c. V-3, The Summary Offences Procedure Act, R.S.S. 1978, c. S-63, The Interpretation Act, R.S.S. 1978, c. I-11, The Saskatchewan Evidence Act, R.S.S. 1978, c. S-16, and The Provincial Court Act, R.S.S. 1978 (Supp.), c. P-30.1. From his conviction on the charge under The Vehicles Act, Father Mercure appealed by way of a stated case. The record in these proceed-

[Page 294]

ings consists only of the stated case and the judgments of the courts below.

This Court after granting leave to appeal set forth (by order of this Court, dated July 7, 1986) the following constitutional questions:

1. Does s. 110 of The North-West Territories Act (54 & 55 Vict., c. 22, s. 18) continue to apply, in whole or in part, to the province of Saskatchewan by virtue of s. 16 of the Saskatchewan Act?

2. If the answer to Question 1 is affirmative, do the rights which are derived from s. 110 of The North-West Territories Act form part of the Constitution of Canada or can they be modified unilaterally by Saskatchewan and if so to what extent?

3. If the answer to Question 1 is affirmative, does s. 110 of The North-West Territories Act require Saskatchewan to print its laws in English and in French?

4. If the answer to Question 1 is affirmative, does s. 110 of The North-West Territories Act afford a party pleading in a court of Saskatchewan the right to use either English or French?

5. If the answer to Question 1 is affirmative, does s. 110 of The North-West Territories Act require that the proceedings be conducted in English or French at the option of the accused or defendant?

6. If the answer to Question 4 is affirmative, does the right to use either English or French before the courts of Saskatchewan include, by virtue of s. 110 of The North-West Territories Act, the right to be understood by the judge or judge and jury without the assistance of an interpreter or simultaneous translation?

It will be seen that a proceeding which commenced as a quasi-criminal proceeding in a provincial court under a provincial statute has gradually transformed itself into either an action for declaration or an informal reference seeking the same result as though the reference were in fact made under either provincial or federal legislation for that purpose. It is an unhappy characteristic of this style of litigation in the courts today that the factual record upon which the ultimate proceeding is based is at best an inadequate foundation of

[Page 295]

evidence or information from which this Court must discern the ultimate issues raised by successor parties and upon which to found a final dispositive judgment responding to these late emerging but very important issues. The doctrine of res judicata is of uncertain application to such proceedings.

IV. Judgments of the Lower Courts

A. Saskatchewan Provincial Court

As noted, the appellant made a preliminary application to the Court, prior to entering a plea, to be permitted to enter a plea in French, to have his trial proceeded with in French, and to have the hearing delayed until the Clerk of the Saskatchewan Legislative Assembly could deliver before the court certain relevant Saskatchewan statutes printed in French. In the view of Deshaye, Prov. Ct. J., s. 110 of The North-West Territories Act continued to apply to the province of Saskatchewan by virtue of s. 16(1) of the Saskatchewan Act. Beginning in 1906, the Saskatchewan Legislature began to replace the Supreme Court of the North-West Territories with the courts of Saskatchewan. Judge Deshaye held that this did not thereby abolish the subject-matter to which s. 16(1) makes reference. The "courts" referred to in s. 110 continued to exist and the language guarantees found therein continued to apply to the new Saskatchewan courts. Judge Deshaye held that s. 110 entitled the appellant to address the court in French and to be provided with an interpreter. He also held that the appellant was not entitled to be provided with statutes printed in French because s. 110 required that only ordinances of the Legislative Assembly of the North-West Territories be printed in both English and French. The subject-matter of this enactment, the Legislative Assembly of the North-West Territories, ceased to function in the portion of the Territories which became the province of Saskatchewan. Section 110 had therefore no application to the Legislative Assembly of Saskatchewan that was established in the Saskatche-

[Page 296]

wan Act, and the appellant was not entitled to statutes printed in French.

B. Saskatchewan Court of Appeal

Chief Justice Bayda, writing for the majority of the Court, largely agreed with the findings of Deshaye, Prov. Ct. J. Section 110 was incorporated into Saskatchewan by s. 16(1) and its language guarantees continued to apply to the newly established Saskatchewan courts. Bayda C.J.S. held that s. 110 entitled the appellant to be provided with an interpreter. As did Deshaye, Prov. Ct. J., Bayda C.J.S. also held that s. 110 did not apply to the Legislative Assembly of Saskatchewan. Upon the creation of the province of Saskatchewan, no further ordinances of the Legislative Assembly of the North-West Territories were made in relation to Saskatchewan and the provision in question ceased to have any further effect in Saskatchewan. The appellant was not therefore entitled to statutes printed in French.

Hall J.A. dissented in the Court of Appeal. He held that s. 110 was applicable only to the courts of the North-West Territories and became inapplicable in Saskatchewan once the province established courts of its own. Further, he noted that if s. 110 had remained in force in Saskatchewan, s. 110 would not be satisfied merely by supplying an interpreter. Simultaneous translation would be required. He also held, without explanatory reasoning, that the clear language of s. 110 required that the statutes of Saskatchewan be printed in both English and French.

V. Preliminary Matters

It should be noted that the relevant provisions of the Alberta Act, S.C. 1905, c. 3, are identical to those of the Saskatchewan Act with respect to the incorporation of the laws of the North-West Territories. The Attorney General for Alberta accordingly appeared as an intervener in this appeal and

[Page 297]

supported the position taken by the province of Saskatchewan.

It is important to briefly dispose of those matters which are not properly at issue in these proceedings. The appellant was charged with a provincial offence and not a criminal offence as found in the Criminal Code . This appeal does not therefore raise the issue of what 'criminal procedure' is to be employed in Saskatchewan courts pursuant to s. 16(2) of the Saskatchewan Act which specifically provides for the incorporation into provincial law of the rules of procedure in criminal matters.

It should also be noted that the trial of the appellant did not take place in the Court of Queen's Bench but in the Provincial Court of Saskatchewan. There was no North-West Territory counterpart for such a court. Section 101  of the Constitution Act, 1867  does not ultimately reach the court of Deshaye Prov. Ct. J. through s. 16(1) of the Saskatchewan Act, s. 4 of the Constitution Act, 1871, or otherwise. Furthermore, any court of comparable jurisdiction as may have existed in the North-West Territories ceased to exist in the province of Saskatchewan at the latest upon the passage of The Magistrates Act in 1906 and The Police Magistrates' Act in 1907, when the forerunners of the present-day provincial courts were established in the province. The present provincial courts were established by The Provincial Court Act, 1978 and unless the legislature of Saskatchewan is found to be constitutionally illegitimate, these courts were validly established by the province. Section 110 of The North-West Territories Act is left without any attachment or application to the trial court of Judge Deshaye in which these proceedings originated.

The issue raised in question 6 has already been resolved in principle in the event that s. 110 of The North-West Territories Act is found to apply in Saskatchewan. This Court in Sociéié des Acadiens du Nouveau-Brunswikc Inc. v. Association of Parents for fairness in Education, [1986] 1

[Page 298]

S.C.R. 549, held (at pp. 574-75) that "there is no language guarantee, either under s. 133  of the Constitution Act, 1867, or s. 19  of the Charter , any more than under s. 17  of the Charter , that the speaker will be heard or understood, or that he has the right to be heard or understood in the language of his choice" (per Beetz J.) This reasoning with respect to s. 133  of the Constitution Act, 1867  and s. 19  of the Charter  is equally applicable to s. 110 of The North-West Territories Act if it be now in effect in Saskatchewan as asserted by the appellant.

The Legislative Assembly Act of 1906, as is the case in The Judicature Act of 1907, and in the other court legislation of Saskatchewan, is silent as to the language in which the legislature functions. Unless some constitutional source for the demand for statutes printed in the French language can be found, the burden is upon the person asserting such a right to establish it in the laws of the province. The statute was enacted in English; the forms for use by the public and by public officers in connection with the operations of the legislature, and for the election of members are all in English. There is no source for such a right asserted by anyone before this Court other than s. 110.

VI. The Relationship Between the Saskatchewan Act and s. 110 of The North-West Territories Act

The ultimate decision to be made is simply whether or not s. 110 formed a part of the law of Saskatchewan at the time of the commencement of these proceedings. That entails a detailed examination of the relevant statutory provisions of Canada and Saskatchewan. In order to put all these provisions, federal and provincial alike, into proper perspective it is of first importance to recognize the basic distinction in law between s. 23 of the Manitoba Act, 1870 and the Constitution Act, 1871 on the one hand, and s. 110 of The North-West Territories Act on the other hand. Section 23 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

[Page 299]

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 British North America 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.

The history of s. 23 and its position in our Constitution is fully dealt with in the Reference re Manitoba Language Rights, supra, and need not be reviewed here. It became a constitutional provision whereunder language rights were established in the Constitution of the newly created province of Manitoba. It was not amendable by the Canadian Parliament or by the Legislature of Manitoba.

Section 110 on the other hand was only a part of the body of the law of the North-West Territories which may or may not have been continued, at best transitionally and conditionally, into the province of Saskatchewan by s. 16(1) of the Saskatchewan Act. Section 110 by its own terms was subject to repeal or revision by the local legislature with reference to its application to that legislature. Furthermore, s. 16(1) of the Saskatchewan Act expressly provided that any laws of the North-West Territories incorporated by that section into the laws of Saskatchewan were subject to 'repeal, abolition or alteration' by Parliament or by the legislature of the new province according to their respective competences. In all this process s. 110 was at no time included in the Constitution by the Parliament of the United Kingdom, or by the Parliament of Canada pursuant to any action taken by it under the Constitution Act, 1871.

The Saskatchewan Act in various terms already set forth contemplated that the Saskatchewan Legislature in the exercise of its constitutional powers under s. 92(14)  of the Constitution Act, 1867  and otherwise would establish provincial institutions as would be in the interests of the new province. Those powers clearly included the power to abolish the Supreme Court of the North-West

[Page 300]

Territories and to establish courts and to prescribe the language of those courts. The scope of the legislative authority of the new Saskatchewan Legislature established by ss. 12 et seq. of the Saskatchewan Act was likewise unfettered with reference to the establishment of its own legislative assembly which, as we have seen, it attended to in 1906. Therefore, the legislature established under the Saskatchewan Act was replaced almost immediately when that legislature enacted The Legislative Assembly Act, S.S. 1906, c. 4.

The Saskatchewan Act, s. 3, makes the provisions of the Constitution Acts, 1867 to 1886, applicable to Saskatchewan except where such provisions are specially applicable to or only affect some of the provinces, and except as such provisions may be varied by the Saskatchewan Act. Section 133  of the Constitution Act, 1867  does not by its terms apply to Saskatchewan. 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 shall be printed and published in both those Languages.

There was no constitutional impediment or restriction, unlike the situation resulting from the presence of s. 23 in the Manitoba Act, 1870, to the new province exercising its free legislative will under s. 92  of the Constitution Act, 1867  as regards the use of language in the legislature and the courts. Indeed, Parliament, acting under its authority to establish new provinces under s. 2 of the Constitution Act, 1871, might well have made reference in the Saskatchewan Act to s. 133  of the Constitution Act, 1867 , or might have inserted a clause comparable to s. 23 of the Manitoba Act, 1870. It did neither. It would be unusual to find in

[Page 301]

the light of all this, that s. 110 has by an indirect and convoluted process somehow been introduced into the Constitution of Saskatchewan.

Section 3 of the Saskatchewan Act frees Saskatchewan from the operation of s. 133  of the Constitution Act, 1867 . The new legislature established in s. 12 of the Saskatchewan Act is by s. 3 empowered to adopt its own rules of language in all its functions and to establish courts without reference to any language rights. The essence of the appellant's submission is that s. 16(1) of the Saskatchewan Act indirectly repealed s. 3 of that same Act by requiring the new legislature thereby established to operate under the regime of s. 133. If this submission fails, then none of the actions taken by the new legislature, including the enactment of The Legislative Assembly Act in 1906 (establishing the Legislative Assembly of the province of Saskatchewan), can be said to be in any way invalid. Section 3 of the Saskatchewan Act gives the new province full plenary powers to establish its courts and legislature, as it sees fit, free from any restrictions in s. 133. This inevitably, in my respectful view, blocks the possible introduction of s. 110 into the laws of the new province. To introduce such a provision of the North-West Territories into the laws of Saskatchewan is in complete conflict with the provisions and plan of the Saskatchewan Act which establishes a complete substitution in the new province for the institutions and the laws related thereto of the North-West Territories.

Unlike the treatment accorded to the establishment of the courts and legislature of the new province, Parliament in s. 17 of the Saskatchewan Act, when it came to educational matters, made s. 93  of the Constitution Act, 1867  applicable to the new province with variations as set out in s. 17. Had this been done in connection with the establishment of the provincial courts or the legislature, a result similar to that reached in Manitoba might have been brought about. As it is, the legislative

[Page 302]

action taken by Parliament in the Saskatchewan Act under the authorization of the Constitution Act, 1871 leaves the power of the legislature of the province of Saskatchewan untrammelled as regards the use of language in the legislature and the courts.

The principal, and in my view only, gate through which s. 110 can pass into the laws of the province of Saskatchewan is s. 16(1) of the Saskatchewan Act. This then leads to the question of the correct interpretation of s. 16 and the other provisions of the Saskatchewan Act, and of The Judicature Act of Saskatchewan, S.S. 1907, c. 8, and the other acts of the province of Saskatchewan establishing courts and their respective jurisdictions, as they may apply to the prosecution under The Vehicles Act which started these proceedings.

The issue, however complex it may become, can be simply stated. Either s. 110 was not incorporated by s. 16(1) of the Saskatchewan Act into the laws of Saskatchewan, or it was so incorporated. It is convenient to examine the former alternative first.

A. Section 110 Did Not Become Part of the Laws of Saskatchewan

It is convenient to repeat the operative words of s. 16(1): "All laws … so far as they are not inconsistent with anything contained in this Act, or as to which this Act contains no provision intended as a substitute therefor, and all courts of civil and criminal jurisdiction … existing immediately before the coming into force of this Act in … Saskatchewan, shall continue in the said province … subject, nevertheless … to be repealed, abolished or altered by the Parliament of Canada, or by the Legislature … according to the authority of the Parliament or of the said Legislature … ."

In section 16(1), Parliament, legislating exclusively with reference to the province of Saskatchewan in the course of organizing the new province, established its courts. The jurisprudential effect of

[Page 303]

this action by Parliament was to establish in Saskatchewan 'courts for the administration of justice' in the words of s. 92(14)  of the Constitution Act, 1867  as Parliament  was authorized to do by s. 2 of the Constitution Act, 1871 in the course of creating new provinces. Section 2 provides:

2. The Parliament of Canada may from time to time establish new Provinces in any territories forming for the time being part of the Dominion of Canada, but not included in any Province thereof, and may, at the time of such establishment, make provision for the constitution and administration of any such Province, and for the passing of laws for the peace, order, and good government of such Province, and for its representation in the said Parliament .

This was the root of authority in the Constitution for s. 16(1). Section 101  of the Constitution Act, 1867  does not authorize Parliament  to establish the courts of a province as 'courts of Canada'. The courts so established by Parliament  in the new province were not therefore established in an exercise of the federal power under s. 101  of the Constitution Act, 1867  to establish 'courts of Canada'. In contrast the Supreme Court of the North-West Territories (and perhaps other courts in the North-West Territories, if any existed) had been established and organized by Parliament  either under s. 4 of the Constitution Act, 1871, or as 'courts of Canada' under s. 101  of the Constitution Act, 1867 . Section 4 of the Constitution Act, 1871 states:

4. The Parliament of Canada may from time to time make provision for the administration, peace, order, and good government of any territory not for the time being included in any Province.

The status in constitutional law of the courts of the North-West Territories before the passage of the Saskatchewan Act need not be determined in the disposition of this appeal, nor is it necessary to determine the constitutional status of the courts of the North-West Territories as constituted in those Territories after the formation of the provinces of Saskatchewan and Alberta. It is unnecessary, therefore, to determine whether s. 133  of the Constitution Act, 1867  has any application to courts

[Page 304]

established in the North-West Territories. This Court considered that section in Jones v. Attorney General of New Brunswick, [1975] 2 S.C.R. 182, where Laskin C.J. stated at p. 193 that s. 133 applied in "any federally established Court … ." (See also MacDonald v. City of Montreal, [1986] 1 S.C.R. 460, per Beetz J., at p. 495, and Société des Acadiens du Nouveau-Brunswick Inc. v. Association of Parents for Fairness in Education, supra, per Dickson C.J., at p. 561.)

Simultaneously with the passage of the Saskatchewan Act the courts of the North-West Territories expired with reference to the territory comprised within the new province. These courts, as they existed before the Saskatchewan Act in the North-West Territories, ceased to have an existence or jurisdiction inside the new province of Saskatchewan. Indeed the Supreme Court of the North-West Territories was disestablished in the reduced North-West Territories simultaneously with the creation of the province of Saskatchewan (see The North-West Territories Amendment Act, 1905, S.C. 1905, c. 27, s. 8).

The courts established in Saskatchewan by the Parliament of Canada in the course of organizing the new province were the judicial institutions of the North-West Territories borrowed for the purpose of organizing the province of Saskatchewan by the Parliament of Canada and temporarily or transitionally clothed with jurisdiction inside the province of Saskatchewan. Whatever superficial trappings these new courts in Saskatchewan might have borne, they were not the courts of the North-West Territories but were newly established courts within the province of Saskatchewan put in place by the Parliament of Canada acting under s. 2 of the Constitution Act, 1871 to carry on a function under s. 92(14) within that jurisdiction. All this constitutional action by the Parliament of Canada is the explanation for the statute enacted by Parliament and assented to on the same day as the Saskatchewan Act, namely The North-West Territories Amendment Act, 1905. In section 8 of that statute Parliament  enacted: "The Supreme Court

[Page 305]

of the North-West Territories is hereby disestablished in the territories, but the Governor in Council may appoint such number of persons as stipendiary magistrates, from time to time, as may be deemed expedient, who shall have and exercise the powers, authorities and functions by the said Act vested in a judge of the said court… ." This was housekeeping legislation undertaken under the constitutional authority of s. 101  of the Constitution Act, 1867 , and/or s. 4 of the Constitution Act, 1871. These amendments were consequential upon the action undertaken by Parliament  under s. 2 of the Constitution Act, 1871 when it established provincial courts transitionally in the new province pending provincial action under s. 92(14)  of the Constitution Act, 1867 , either by the new Legislature of Saskatchewan established in s. 12 of the Saskatchewan Act or by its successor. At the same time Parliament  'disestablished' the last vestige of the Supreme Court of the North-West Territories whether it had been established under s. 101  of the Constitution Act, 1867  or s. 4 of the Constitution Act, 1871.

Section 16(1) recognizes the institutional characteristics of this action taken by Parliament , when the section includes express provision for the repeal or abolition by the province of the laws or the institutions of the North-West Territories, or by Parliament  according to their respective legislative competences. Section 16(2) expressly authorizes the province to abolish the Supreme Court of the North-West Territories for all purposes:

16. (1) …

(2) The Legislature of the province may, for all purposes affecting or extending to the said province, abolish the Supreme Court of the North-West Territories … .

This was done by the province in s. 3 of The Judicature Act of 1907:

[Page 306]

3. For all purposes affecting or extending to the province of Saskatchewan the supreme court of the North-West Territories and the offices both judicial and ministerial thereof as well as the jurisdiction, powers and authority belonging or extending to the said court are hereby abolished.

The legislature then proceeded to establish the Supreme Court of Saskatchewan:

4. There is hereby constituted and established in and for the province of Saskatchewan a superior court of record of original and appellant jurisdiction as well in civil as in criminal cases which court shall be called "The Supreme Court of Saskatchewan" and under such name shall constitute one supreme court of judicature for the province.

Whether the Supreme Court of the North-West Territories, and any other courts which may have existed in the Territories by reason of federal action, were established under s. 101  of the Constitution Act, 1867  or s. 4 of the Constitution Act, 1871, their character in constitutional law, after the enactment of s. 16(1) of the Saskatchewan Act by Parliament , is that of a provincial court established transitionally by Canada as an exercise of sovereign authority under s. 2 of the Constitution Act, 1871 pending constitutional action by the province under s. 92(14)  of the Constitution Act, 1867 . Parliament , in establishing a new province under s. 2, is authorized to put in place at least such organization and institutions as may be necessary for the initial operations of the new provincial plenary entity. In so doing, Parliament  may enact measures which ordinarily would be within the provincial sphere and which thereafter are subject to replacement or variation by the newly established provincial legislature. Section 6 of the Constitution Act, 1871, however, stipulates "… it shall not be competent for the Parliament of Canada to alter the provisions of … any …Act hereafter establishing new Provinces … ." In that interim any North-West Territories judicial institution now residing constitutionally within the new province is not a court established under either s. 101 or s. 4, nor does it have the constitutional characterization of such a court. It is for constitutional purposes a 'provincial court' put in place transitionally under s. 2 of the Constitution Act, 1871. This is recognized by the terms of s.

[Page 307]

16(2) of the Saskatchewan Act which authorizes the abolition of the Supreme Court of the North-West Territories by the new province and is reflected in the debates of the House of Commons at the time. It is only the status of the courts after the province has been established with which we are here concerned and not the status of the courts of the North-West Territories prior to the birth of the province of Saskatchewan. If section 133 is indeed found to apply to 'federally established courts' in the North-West Territories, and it is again observed that it is unnecessary to determine that issue in order to dispose of this appeal, that section in any case has no application to the province of Saskatchewan. Section 3 of the Saskatchewan Act supports this conclusion as it specifies that the "provisions of the British North America Acts, 1867 to 1886 [now the Constitution Acts, 1867 to 1886], shall apply to the province of Saskatchewan … except such provisions as are in terms made … specially applicable to or only to affect one or more and not the whole of the said provinces". Section 133 is such a provision and thus has no application to Saskatchewan institutions.

All this was understood and contemplated by the Prime Minister, Sir Wilfrid Laurier, in speaking in the House of Commons at the time of the passage of the Saskatchewan Act and the complementary North-West Territories Amendment Act, 1905:

It was because the courts of law were then, as they are to-day, under the jurisdiction of this parliament, and not under the jurisdiction of the territorial legislature; and therefore, according to the terms of section 133 …

The courts of the Northwest Territories were established under this Act [Constitution Act, 1867 ], and therefore the parliament of Canada had not the power to abolish the use of the French language in those courts. When those courts shall have become provincial, we shall no longer have jurisdiction over them, and therefore the legislature will have the right to deal with the language in the courts as well as in the legislature.

[Page 308]

(Debates of the House of Commons, June 30, 1905, at p. 8579)

In an earlier statement by the Prime Minister then quoted by him to the House of Commons, he had stated (at p. 8580):

It is impossible to admit, for instance, that the institutions of the Northwest are permanent. On the contrary, they are exceptionally temporary; they deal with a state of things which is exceptional in itself; they were devised at a time when there was no population, and they must be modified from time to time as the necessities of the case require.

The Prime Minister then continued (at p. 8580):

Has anything been done in this constitution for the language of any minority in any province? Nothing at all. The fathers of confederation did not pretend to authorize the French language in any part of the Dominion except in this parliament and in the province of Quebec. Everywhere else the people were left free to deal with the matter as they thought fit.

Later in the same debate a member of the House of Commons, Mr. Brodeur, at p. 8608, stated:

Now that the Northwest Territories are about to become provinces they have to be dealt with as all the other provinces are. The organization of the courts falls entirely under their control and they have the right to declare what language shall be used in the courts, whether it shall be English or French.

It may be that s. 133  of the Constitution Act, 1867  explains the proviso in s. 110 whereby the Legislative Assembly of the North-West Territories may only abrogate the use of French in its legislative proceedings and not the use of French before the courts. On the other hand, should Parliament  have been acting pursuant to its s. 4 Constitution Act, 1871 responsibilities in establishing courts and a legislature in the North-West Territories, the purpose of s. 110 at the time of its enactment as part of its s. 4 responsibilities is self-evident and of specific application to the North-West Territories' institutions. Section 110 was therefore either a precautionary recognition of s. 133 or a part of the federal administration of those territories lying outside any province under s. 4 of the Constitution Act, 1871. Therefore whether the constitutional base of the North-West Territo-

[Page 309]

ries courts be s. 101 or s. 4 the result from the operation of s. 16 of the Saskatchewan Act is precisely the same in determining the constitutional character of the courts by that section established in the province of Saskatchewan. As Sir Wilfrid Laurier stated, these laws relating to the North-West Territories were very temporary and particular in application to the Territories. Once these courts were no longer within the jurisdiction of Parliament , neither s. 133 nor any measures adopted pursuant to s. 4 had, by reason only of the powers granted Parliament  under s. 4, any application in the province of Saskatchewan. These constitutional considerations together with the plain meaning of the words adopted by Parliament  in s. 110 lead inexorably to the conclusion that Parliament  never intended that s. 110 of The North-West Territories Act should apply to courts not within the federal jurisdiction.

It follows that if s. 110 was intended to apply only to the courts of the North-West Territories, as it is expressed to be, and to no successor courts, the provision in the same section with regard to the printing of laws in French was to apply only to the Legislative Assembly of the North-West Territories and not to any legislature outside the North-West Territories.

As Parliament did in the case of courts in s. 16 , Parliament  also did in ss. 12 to 15 of the Saskatchewan Act, with reference to the legislature of the new province. Parliament  there established a legislature for the new province, the Legislative Assembly of Saskatchewan, and until the new legislature otherwise determined, the laws of the North-West Territories relating to the constitution and election of members of the new legislative assembly were by the Saskatchewan Act made applicable mutatis mutandis to the new provincial legislature.

In the words of s. 16(1) of the Saskatchewan Act these provisions are "a substitute" found in s. 16(1) itself, for the laws of the North-West Terri-

[Page 310]

tories relating to the Legislative Assembly of the Territories otherwise eligible for incorporation into Saskatchewan. Consequently, the laws incorporated into the new province by s. 16(1) do not include the laws of the Territories dealing with the Legislative Assembly of the North-West Territories, including that part of s. 110 which relates to the Legislative Assembly.

Support for this interpretation of these statutes is found in s. 14 of the Saskatchewan Act, which provides that the laws of the North-West Territories relating to the "constitution" and the "election of members" of the North-West Territories Legislature shall apply to the Legislative Assembly of Saskatchewan. If all the laws of the North-West Territories, including s. 110, were carried forward into Saskatchewan by virtue of s. 16(1) of the Saskatchewan Act, then s. 14 of the same Act would be unnecessary.

This conclusion is supported by the decision of the full Court of Appeal of the North-West Territories, when sitting as the appellate court of the province of Saskatchewan after the proclamation of the Saskatchewan Act, in Strachan v. Lamont (1906), 4 W.L.R. 411. This case focussed on s. 16(1) and s. 14 of the Saskatchewan Act. The Court in Strachan considered whether s. 14 required the application of The Controverted Elections Ordinance of the Consolidated Ordinances of the North-West Territories, 1898, c. 4, to the recently created Saskatchewan legislature. The court also considered the relevance of s. 16 of the Saskatchewan Act. Wetmore J., concurring with the majority on that point, stated the following at p. 415:

I am of opinion that the provisions of sec, 16 of the Saskatchewan Act are not applicable to the matters under discussion. The laws, etc., referred to in that section are laws, etc., with respect to subject matters that are in existence; they do not refer to such a law as the Territories Controverted Elections Ordinance. That Ordinance has relation to a subject matter which has been wiped out by the Saskatchewan Act, namely, the Territorial Assembly. We must therefore have recourse to sec. 14 of the Act, and, if there is nothing in that section to make the Controverted Elections Ordinance in force as to the election of members to the Legislative

[Page 311]

Assembly, then there are no other provisions in the Act that will do so.

According to Wetmore J., the "subject matter" of The Controverted Elections Ordinance, that is, the Legislative Assembly of the North-West Territories, was "wiped out" by the Saskatchewan Act which established a new Saskatchewan Legislature. As a result, given that the laws incorporated into Saskatchewan pursuant to s. 16(1) refer only to laws "with respect to subject matters that are in existence", the ordinance in question could not be incorporated into Saskatchewan because its subject matter no longer existed.

Sifton C.J. agreed with this analysis of Wetmore J. (at pp. 412-13). The Chief Justice then stated that s. 16 could not operate to permit the application of any of these laws pertaining to the Assembly of the North-West Territories because "sec. 16 was not intended to cover any special legislation" (p. 413). In his view Parliament  "explicitly declared" so by the operation of both ss. 14 and 16(3) (which continues the existence of all societies incorporated under the Assembly of the North-West Territories). Sifton C.J. held that if s. 16(1) was intended to have the effect of incorporating all "special legislation" of the North-West Territories into Saskatchewan, both ss. 14 and 16(3) would have been unnecessary. The Chief Justice concluded that the laws of the North-West Territories which established the institutions of that jurisdiction had no continuing application to the newly created institutions of the new and plenary jurisdiction of the province of Saskatchewan. All five of the judges were of this view by reason of s. 16(1).

In the result the case stands for the proposition that ordinances or laws of the North-West Territories specific to the institutions of the North-West Territories, a federal jurisdiction, have no further application to the new institutions established in the province of Saskatchewan. Their "subject matter" was eliminated by the creation of the new institutions. It follows therefore that laws specific to the Legislative Assembly of the North-West

[Page 312]

Territories, such as s. 110 which provides for language in the "Legislative Assembly of the Territories", ceased to apply to the new Saskatchewan Legislature that was established by s. 12 of the Saskatchewan Act. What was said in Strachan, supra, regarding the legislature applies with equal force to the courts established in s. 16(1).

The provinces of Saskatchewan and Alberta have presumably relied upon Strachan since 1906 and the interpretation of these statutes therein applied should only be set aside if it is clearly in error which in my view is far from the case. The decision of the Court of Appeal in Strachan, has, on the contrary, produced a reasonable result in all the circumstances surrounding the early days of the province. The interpretations placed upon the federal and provincial statutes relating to these events should not therefore be cast aside at this late date.

Section 16(1) itself included two exclusionary provisions with regard to the incorporation of legislation of the North-West Territories into the laws of the new province. Firstly, any laws inconsistent with the Saskatchewan Act or secondly, any laws as to which the Saskatchewan Act contains a provision as a substitute therefor, are not carried forward into the new province by s. 16(1). There is nothing in the Saskatchewan Act which addresses the use of language in the courts or the legislature of the province. Therefore the exclusive provincial legislative sovereignty under the Constitution remains untrammelled by any provisions of the Saskatchewan Act, and indeed it is specifically protected by s. 3 of the Saskatchewan Act. Section 110 of The North-West Territories Act, on the other hand, prescribes the use of language in the courts and the Legislative Assembly of the North-West Territories. The application of that provision would be a curtailment of the institutions created and the authority granted to the legislature of the new province by the Saskatchewan Act and accordingly s. 110 is in conflict and 'inconsistent' with that Act. In the same way, s. 110 and the regime thereby described finds a substitution for it

[Page 313]

in s. 16(1) in the form of the courts thereby established without any reference to language use. Similarly ss. 12 to 15 inclusive established a new legislature without any associated language provision. These regimes are substituted for that prescribed for the North-West Territories prior to 1905 in s. 110.

Notwithstanding that none of the constitutional questions settled by this Court make any reference to s. 14 of the Saskatchewan Act as the conduit by which s. 110 is made a part of the laws of Saskatchewan, it may be argued that s. 110 of The North-West Territories Act could find its way into the laws of the province of Saskatchewan through s. 14. As has already been discussed, this section is a denial of the argument in favour of a broad, all-inclusive interpretation of s. 16(1) of the same Act as a device for the incorporation of any and all laws of the North-West Territories into the laws of the new province. This consideration underlies the reasoning in Strachan, supra. The much narrower issue raised by the invocation of s. 14 for these purposes is whether or not s. 110 is a "provision … of the law [presumably, the law of the North-West Territories] with regard to the constitution of the Legislative Assembly of the North-West Territories and the election of members thereof…." We are here concerned only with the first part of the provision relating to the "constitution" of the North-West Territories Legislature. Wetmore J. in Strachan, supra, at p. 415, decided that the term "constitution" did not include the North-West Territories Controverted Elections Ordinance in the laws applicable to the new provincial legislature.

Sifton C.J. approaches the question as to the effect of s. 14 vis-à-vis the laws of the province of Saskatchewan in this way (at p. 414):

Chapter 2 [of the Consolidated Ordinances of the North-West Territories, 1898] deals with the number of legislators, quorum, election of Speaker, rules for conduct, etc., and generally with the constitution of the Assembly, and is, by its tenor, plainly pointed out as

[Page 314]

being the law referred to in the first part of sec. 14, "with regard to the constitution," etc.

Chapter 2, mentioned by the Chief Justice, was enacted by the Legislative Assembly of the Territories in 1895. It is entitled An Ordinance Respecting the Legislative Assembly of the Territories. It deals with those matters referred to in the above quotation from the judgment of the Chief Justice except "rules for conduct". Unless the Chief Justice meant that the term "rules for conduct" referred to the taking of votes, procedure to be followed in the absence of the Speaker and the Deputy Speaker, and how vacancies arising in the membership of the Assembly are to be filled, it would appear that the "rules for conduct" are not dealt with in Chapter 2 at all. There is no reference in any of the provisions of the Ordinance or in the forms appended thereto to the use of any particular language in the sessions of the Assembly. If, as the Chief Justice says, s. 14 points to Chapter 2 of the Consolidated Ordinances of the North-West Territories, 1898, then the content of Chapter 2 supports the narrower interpretation placed upon "constitution" by the Saskatchewan court. The incorporation of this Ordinance into the laws of Saskatchewan would not, in my opinion, contribute anything to the submissions made by the appellant herein stipulating or authorizing the use of the French language in the proceedings of the Legislative Assembly.

Sifton C.J. continued (at p. 414):

It was strongly urged upon the argument of this case that the word "constitution" in sec. 14 had a much broader meaning than this, and should be taken to mean that all laws in any way affecting the Legislative Assembly or its constituent parts were intended, but the wording of sec. 14 itself shews, to my mind, conclusively, that no such meaning can properly be given to the word as there used …

Taking into account the laws of the Territories applicable to the Legislative Assembly and given the words employed by Parliament  in s. 14, it is difficult to read into the word "constitution" of the Assembly any meaning other than "what constitutes the Assembly". Section 14 would not appear

[Page 315]

to make any contribution to the search for the establishment of language rights in the Saskatchewan courts.

It is perhaps equally telling that s. 110, dealing as it does with the use of language in the Legislative Assembly and the courts, is more properly classified as a procedural element. This would cause s. 110 to fall well short of a provision which might come within what could be called "the constitution of the Legislative Assembly". By any line of reasoning it is difficult, with all respect to those who may hold views to the contrary, to interpret s. 14 as somehow reaching out and pulling s. 110 of the federal North-West Territories Act into the laws of the province of Saskatchewan relating to the newly established legislature and judicial institutions of the new province.

The province of Saskatchewan, like all provinces, was granted the power to establish its own courts and provide for the administration of these courts under s. 92(14)  of the Constitution Act, 1867 , including any language rights in those courts. The exercise of this power by the province was specifically contemplated in s. 16(2) of the Saskatchewan Act which anticipated that the new province would abolish the Supreme Court of the North-West Territories. Section 110 of The North-West Territories Act cannot reasonably be read so as to have the effect of altering by inference this constitutional division of powers provided for in both the Constitution Act, 1867  and the Saskatchewan Act from the very beginning of the province. Nor could it have such effect in law.

An enactment intended to have constitutional impact must clearly express such an intent. As was decided by this Court in Jones v. Attorney General of New Brunswick, supra, at p. 197, "in the absence of federal legislation competently dealing with the language of proceedings or matters before provincial Courts which fall within exclusive federal legislative authority", the province may "… legislate respecting the languages in which proceedings in Courts established by that Legislature

[Page 316]

might be conducted". Language in the Saskatchewan provincial courts with the exception of matters falling within exclusive federal jurisdiction is thus a matter to be determined by the province of Saskatchewan. It would be remarkable to see such an important matter left to inference and obscure reference. In the result, I conclude that s. 110 was not incorporated into the laws of the province of Saskatchewan and accordingly was not in effect at the time of the commencement of these proceedings in the Provincial Court of Saskatchewan.

This conclusion is sufficient to dispose of this appeal in my view. However, an alternative route to the same result is available even if the correct view of the law is that s. 110 was incorporated into the laws of the province of Saskatchewan by s. 16(1). Because this alternative was advanced and argued before this Court, it should be briefly examined.

B. Alternatively, Section 110 Was Made Part of the Laws of Saskatchewan

Even assuming s. 110 is part of the provincial laws, there are interpretative difficulties in the path of the appellant on this leg of the argument in applying it to the Legislature and the courts of Saskatchewan because of the language used by Parliament  in s. 110 itself. The section given its plain meaning can apply only to the "Legislative Assembly of the Territories". The reference to the "courts" is equally clear. The failure of the federal legislature to repeat the obvious by inserting "of the Territories" after the word "courts" does not weaken the section as a clear expression of legislative intent to apply the regulation to the courts of the North-West Territories. Saskatchewan was not, at the time of the enactment of s. 110, in existence. Even if it had been it could hardly be urged that a statute entitled The North-West Territories Act could be taken to have been intended for the regulation of an additional jurisdiction.

[Page 317]

As we have already seen, s. 110, if it came into Saskatchewan law at all, it did so instantaneously with the termination of the existence of the only two institutions to which s. 110 applies. Thus section 110 became spent as regards the legislature and the courts of Saskatchewan simultaneously with its introduction into Saskatchewan law. If section 110 were a part of Saskatchewan law at that time, it became nugatory, almost 75 years before these proceedings began. As discussed below, s. 110 was repealed by Parliament  in 1907 (S.C. 1907, c. 43) and was never reenacted with reference to the Territories nor effective within the new province by any reenactment by Parliament  (Constitution Act, 1871, s. 6). Indeed the Legislative Assembly of the Territories was either abolished or eclipsed by powers granted in s. 6 of The North-West Territories Amendment Act, 1905 where it was provided:

6. The Commissioner in Council shall have the same powers to make ordinances for the government of the Territories as are by the said Act vested in the Legislative Assembly of the territories in relation to such subjects heretofore within the legislative authority of the said Assembly as are from time to time designated by the Governor in Council.

The legislative records of the North-West Territories do not reveal that the Legislative Assembly functioned thereafter. The next recorded ordinances were enacted by the Commissioner in Council commencing in 1922 (see the Ordinances of the Northwest Territories, 1905-1930). A practical difficulty arose with reference to any continuation of the North-West Territories Legislative Assembly. Its constituencies, 35 in all, were substantially replaced by the 50 constituencies created in the Saskatchewan and Alberta Acts in 1905. There may have been some surviving constituencies not reassigned or redesigned in 1905 with reference to that part of the province of Manitoba carved out of the North-West Territories in 1912 whereby the small rectangular province of Manitoba was expanded so as to have the same northern boundary as the provinces of Saskatchewan and Alberta. (See The Manitoba Boundaries Extension Act, 1912, S.C. 1912, c.

[Page 318]

32.) By that time there may have been no surviving constituencies for the election of any members of the Legislative Assembly of the North-West Territories. Thus for all practical purposes, even if it had been reenacted with reference to the Territories, s. 110 would have been without function or application.

In summary, even if the incorporation of s. 110 resulted from s. 16(1) of the Saskatchewan Act, its provisions cannot reasonably be interpreted as an intention by Parliament  to alter the basic provincial constitutional jurisdiction in this area. The province of Saskatchewan acquired the power to establish its institutions when it was created. It subsequently exercised this power when it established its own courts and completed the organization of its legislature in 1906 after the establishment of the legislature by Parliament .

We are left in the case of the Legislative Assembly with only the question of the proper application of the rules of statutory interpretation to s. 110 and to the applicable provisions of the Saskatchewan Act and the domestic legislation by the Legislature of Saskatchewan. As already discussed, the Saskatchewan Legislature in 1906 established the Saskatchewan Legislative Assembly (S.S. 1906, c. 4). This is a new legislature, a successor to that established in ss. 12 et seq. of the Saskatchewan Act. The 1906 province of Saskatchewan statute is a self-contained enactment fully providing for the establishment and operation of the provincial Legislature. Upon a proper application of the canons of construction of public statutes it is clear, in my respectful view, that even if s. 110 be found to have been incorporated into the laws of Saskatchewan it has no application to the proceedings in the new Legislature or the new courts of Saskatchewan. Accordingly, the appellant was not entitled to call upon the Clerk of the Legislative Assembly to produce the five statutes in question in the French language, or to call upon the court to conduct the trial of the charge under the provincial statute in the French language.

[Page 319]

Support for this conclusion can be found in the decision of Greschuk J. in R. v. Lefebvre (1982), 21 Alta. L.R. (2d) 65 (Q.B.), recently upheld by the Alberta Court of Appeal in (1986), 48 Alta. L.R. (2d) 124. Greschuk J. at trial concluded at pp. 79-80:

In my opinion, once the province abolished or replaced the courts of the Territories and established or constituted its own provincial courts, s. 110 became inapplicable to the new provincial courts. The relevant portion of s. 110 states:

"Either the English or the French language may be used by any person in the debates of the Legislative Assembly of the Territories and in the proceedings before the courts; and both those languages shall be used in the records and journals of such Assembly; and all ordinances made under this Act shall be printed in both those languages …" I submit that the drafter of that section could have added the words "of the Territories" after the words "in proceedings before the Courts", but these words would have been redundant. However, there can be no doubt also that Parliament  by necessary intendment or by reasonable inference or implication meant that either the English or the French language may be used in proceedings before the courts "of the Territories". Section 110 therefore could only refer to the courts of the Territories. And so it follows that, since the courts of the Territories were continued in the province, and these courts were abolished or replaced by new provincial courts by such Acts as the Supreme Court Act, 1907; the District Courts Act; the Police Magistrates and Justices of the Peace Act, 1906 and the Provincial Court Act in 1971, s. 110 of the North-West Territories Act is no longer in force or effect in Alberta. Section 110 could no longer be applicable to the new provincial courts as provincial courts were no longer courts of the Territories.

The judgment of Prowse J.A. for the majority of the Alberta Court of Appeal affirms the finding of Greschuk J. (at p. 131):

The life of s. 110 depended upon the continuance of the courts of the North-West Territories. When the transition period in relation to the courts of the North-West Territories came to an end with the enactments by the province setting up its own courts, s. 110 ceased to have any application in the province.

[Page 320]

With the passing of the Acts setting up "the Alberta courts", the province occupied its field of power in relation to courts …. Section 110 was not enacted for the purpose of extending language rights into the Alberta courts after the courts of the North-West Territories ceased to have any jurisdiction in the province upon being superseded by the Supreme Court of Alberta.

Neither the trial judge nor the Court of Appeal found the courts of the North-West Territories, as continued by the Alberta Act in the province of Alberta, thereby ceased to be 'courts of Canada' so as to become 'Alberta courts'. Both of the lower courts found that s. 110 was carried into the laws of Alberta and continued to apply to the North-West Territory courts temporarily continued in the province by the Alberta Act until the Alberta statutes established the Alberta courts which then displaced the North-West Territory courts and s. 110. At that stage s. 110 ceased to operate as a part of Alberta laws. With respect, I find the characterization in law of the North-West Territories courts put in place in Saskatchewan and Alberta by Parliament  pursuant to s. 2 of the Constitution Act, 1871, to be courts of Saskatchewan and Alberta under the Constitution Act, 1867 . As a practical matter, the same result is reached by either approach within a year and a half of the formation of the two provinces. Belzil J.A., in dissent, alone expressed the contrary view which has not been followed in any of the courts in Alberta or Saskatchewan at least with reference to civil jurisdiction and jurisdiction with respect to provincial offences.

By either line of reasoning the effect of s. 110 in law after the adoption of the Saskatchewan Act is the same. It is clear that the new legislature of the province has sole plenary power under s. 92  of the Constitution Act, 1867  to establish its legislature as it may wish (subject to limitations not here relevant) and to specify the language or languages to be employed in its proceedings. Section 92(14)  of the Constitution Act, 1867  likewise authorizes

[Page 321]

the new provincial legislature to establish its own courts as it did and to specify the language to be employed therein, again subject to exceptions not here relevant.

In the result, even if s. 110 is found to have been incorporated into the laws of the province by way of s. 16(1), the terms of s. 110 have long before the commencement of these proceedings become spent and inapplicable to any existing provincial institution, legislative or judicial.

VII. Factual Circumstances Surrounding the Establishment of the Province of Saskatchewan

Since writing these reasons for judgment I have had the opportunity of reading those of my colleague, La Forest J., who makes reference to historical material. The record before the Court does not include these historical opinions and comments. The courts, and particularly those at the second level of appeal, are neither qualified nor authorized to conduct a trial of historical issues. Texts and essays on local history do not always agree. Some will be factual, some speculative and even designedly controversial. There is rarely unanimity. Migratory history and demographic material concerning these frontier times are in my view, even if properly admissible at this stage, seldom precise. Without the admission of this material through the conventional processes of justice the reliability of such material is not demonstrated. Accordingly, I seek to confine my reasons to the record and to government census statistics and Hansard as introduced or adverted to by counsel for the several parties.

Legislative history, on the other hand, is of interest to courts in these circumstances although it may not by itself be determinative of the inter-

[Page 322]

pretative issues. (See generally Peter W. Hogg, Constitutional Law of Canada (2nd ed. 1985), at pp. 342-44, on the use of legislative history.) Because the parties before this Court argued the legislative history at length, it may not be inappropriate to comment upon it. Indeed it clearly supports the conclusion I have reached in this appeal. The creation of the provinces of Alberta and Saskatchewan by Parliament  gave rise to debates in the House of Commons on the issue of language rights in the new provinces. A motion calling for the acceptance of French as an official language in the new provinces was introduced. This motion would have reproduced s. 110 in the body of the Saskatchewan Act itself which would have had the effect of placing these language guarantees beyond the competence of the province to affect or alter. This may have placed the new provinces in exactly the same situation as Manitoba, which is subject to certain language guarantees by virtue of s. 23 of the Manitoba Act, 1870 and the Constitution Act, 1871 (see Attorney General of Manitoba v. Forest, [1979] 2 S.C.R. 1032, and Reference re Manitoba Language Rights, supra).

The parties before this Court presented various excerpts from Hansard, Debates of the House of Commons. In the debates in the House of Commons on June 30, 1905, Sir Wilfrid Laurier strongly opposed this amendment which "would crystallize the use of the French language in the Provinces …." The language question in the new provinces was a "subject to be dealt with by them [the provinces] as they may see fit in the best interests of the public" (pp. 8571-72). Sir Wilfrid Laurier noted that the historic compromise or "compact" that gave rise to s. 23 of the Manitoba Act, 1870 does not apply to Saskatchewan or Alberta (p. 8576). Sir Wilfrid Laurier's government thus defeated the motion of F. W. Monk and there was no provision placed in the Alberta Act or the Saskatchewan Act which addressed the issue of language. It was clearly contemplated that the

[Page 323]

new provinces would be free to address this issue as they saw fit.

While it may not be of controlling influence, it certainly is supportive of the foregoing line of reasoning that the interpretation applied to the statutes here relevant appears to accord with the demographic facts of the province both at the time of its formation in 1905 and continuing down to this day. In sections 18 and 20 of the Saskatchewan Act, Parliament  estimated the population of the province at the time of its establishment in 1905 at 250,000. According to the decennial census taken throughout this period, a huge wave of settlement took place in Saskatchewan or the territory which became the province of Saskatchewan between 1901 and 1911.

Population

	1901	1911
Province of Saskatchewan	91,279	492,432

(Census of Canada 1911, Statistics Canada)

Census information for the two years 1901 and 1911 reveals that persons claiming a French 'origin' represented in the years 1901, 2,634 persons (2.9 percent) and 1911, 23,251 persons (4.7 per cent) of the total population. (See Canada Year Book 1912, at p. 25.) To place the population development in perspective, the Canada Year Book 1988, at pp. 2-20, reports the total population of the province in 1986 at 1,009,610 people of which, now using the classification of "mother tongue", 20,725 persons (2.1 percent), were classified as French. The basis for these population figures in the years 1901, 1911 and 1986 do not reveal precisely the makeup of the population on the basis of first language or language competence. These figures at the most form an approximate picture of the demographic background of the population of the region at the times shown. At the most it provides a source against which the legislative history of the area can be better understood.

[Page 324]

The above population changes shed some light on the action taken by the several legislative bodies concerned in adding the proviso to s. 110 in 1891, in omitting from the Saskatchewan Act anything of the nature of s. 23 in the Manitoba Act, 1870, and in omitting any reference to language rights in The Judicature Act of 1907, and the other court statutes of Saskatchewan.

VIII. Repeal of s. 110 by Parliament 

Some parties presented a submission to this Court to the effect that the repeal of s. 110 of The North-West Territories Act in January 1907 (S.C. 1907, c. 43) by Parliament  somehow settled the issue of the applicability of s. 110 in the laws of the new province. In my view this action by Parliament and the purported re-enactment of s. 110 in April 1907 (S.C. 1907, c. 44) adds nothing to the settlement of the issue raised in this appeal concerning the application of s. 110 to the institutions of Saskatchewan. If section 110 was in law incorporated by the Saskatchewan Act into the laws of Saskatchewan, its subsequent repeal by the Parliament of Canada would not operate so as to remove s. 110 from the body of laws of Saskatchewan. If Parliament has indeed reinstated s. 110 as to its application in the province of Saskatchewan, such federal legislation would have no effect on Saskatchewan. This may be the explanation for the fact that s. 110 never reappeared in the Statutes of Canada or the Revised Statutes of Canada after the proclamation of c. 43 of the 1907 Statutes of Canada. The issue of the survival of s. 110 in the laws of the province of Saskatchewan remains untouched by all this parliamentary activity.

IX. Conclusion

By reason of the form of this litigation as finally evolved, and in the absence of a cross-appeal, the conventional dispositions of allowing or dismissing the appeal are inappropriate. In any case, a new trial is out of the question, there being no accused surviving. I therefore believe the appropriate and adequate disposition of these proceedings is a

[Page 325]

response to the questions put by the Court. I would answer those questions as follows:

Question 1. No.

Questions 2 to 5 inclusive need not, in view of my negative answer to Question 1, be answered.

Question 6 requires no answer in these proceedings.

I am assisted in reaching this result by the realization that in order to reach the opposite result one must find a substitute in the applicable Saskatchewan and Alberta legislation and that of the Parliament of Canada or the United Kingdom Parliament relating to these new provinces, for s. 23 as it appears in the Manitoba Act, 1870. Neither the Parliament of Canada nor the Parliament of the United Kingdom saw fit to enact that section or anything approaching it in the legislation leading up to the formation of these new provinces. Even with s. 23 present in the Manitoba legislation a reference, with supporting material and the involvement of both levels of government, was necessary to bring about a constitutional resolution of the question. There is no historical or other material produced in this record by public authority. The Government of Canada did not participate in the proceedings. On a very limited factual base and an equally meagre statutory base, and without any constitutional provision clearly relating to the question now raised, it is highly unsatisfactory to stretch the legislation relating to the North-West Territories into a constitutional provision fundamentally affecting the organization of these provinces. Neither the statutes reviewed in these reasons, nor the factual situation revealed in the parliamentary debate at that time, support the elevation to a position of an entrenched right in the nature of a constitutional right that which was by its own terms only applicable to the courts and Legislature of the North-West Territories, and in any event was only a statutory direction subject to repeal or variation as to the legislature by the subject legislature itself. Only by a strained interpretation of the statute establishing Saskatchewan, and by failing to accord to the organizational statutes of the new province their ordinary legisla-

[Page 326]

tive impact, can s. 110 be elevated to a constitutional provision. This would produce a result neither intended by the Government of Canada of the day, nor expressly mentioned in any parliamentary or legislative action at the time the province was formed.

There should, in my view, be no order as to costs.

Appeal allowed with costs, ESTEY and MCINTYRE JJ. dissenting.

Solicitor for the appellant and the interveners (principal parties): Michel Bastarache, Ottawa.

Solicitor for the respondent: Kenneth W. MacKay, Regina.

Solicitor for the intervener the Attorney General for Alberta: Peter T. Costigan, Edmonton.

Solicitor for the intervener the Freedom of Choice Movement: Joseph Eliot Magnet, Ottawa