Supreme Court of Canada
Jones v. A.G. of New Brunswick, [1975] 2 S.C.R. 182
Date: 1974-04-02
Leonard C. Jones Appellant;
and
The Attorney General of New Brunswick Respondent;
and
The Attorney General of Canada
and
The Attorney General of Quebec Intervenants.
1974: February 11, 12, 13; 1974: April 2.
Present: Laskin C.J. and Martland, Judson, Ritchie, Spence, Pigeon, Dickson, Beetz and de Grandpré JJ.
ON APPEAL FROM THE SUPREME COURT OF NEW BRUNSWICK, APPEAL DIVISION
Constitutional Law—Validity of Legislation—Official languages—Competence of Parliament—Competence of provincial legislatures—Official Languages Act, R.S.C. 1970, c. O-2, ss. 11(1), (3), (4)—The Official Languages of New Brunswick Act, 1969 (N.B.), c. 14, s. 14—The Evidence Act, R.S.N.B. 1952, c. 74, s. 23C—The British North America Act, 1867, ss. 91, 101, 133.
A Reference was made by the Lieutenant Governor of New Brunswick, in Council, to the Supreme Court of New Brunswick, Appeal Division, of five questions of law dealing with the validity and effect of official languages legislation enacted by the Parliament of Canada and by the provincial Legislature. Leonard C. Jones was declared to be a person entitled to be heard on the Reference and was joined as a party. The matter comes to this Court by way of appeal by Jones and cross appeal by the Attorney General of New Brunswick. The Attorneys General of Canada and Quebec intervened in support of the respondent.
Held: The appeal should be dismissed and the cross appeal should be allowed.
Subsections (1), (3) and (4) of s.11 of the Official Languages Act, R.S.C. 1970, c. O-2 are within the legislative competence of the Parliament of Canada under s. 91 of the British North America Act, 1867, which provides that Parliament can “make Laws for the Peace, Order, and good Government of Canada, in relation to all matters not coming within the
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Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces; ...”. Section 91, particularly s.91(27) which gives Parliament jurisdiction in relation to criminal law and criminal procedure, and s. 101 of the British North America Act, 1867, which empowers Parliament to establish Federal Courts, give to Parliament the power to enact ss. 11(1), (3) and (4) which are valid Federal legislation.
Section 23C of The Evidence Act, R.S.N.B. 1952, c. 74, is within the legislative competence of the Legislature of New Brunswick. In the absence of federal legislation dealing with the language of proceedings or matters which fall within exclusive federal legislative authority, it was open to the provincial legislature to legislate as to the languages which might be used in courts established by the provincial legislature. For the same reason s. 14 of The Official Languages of New Brunswick Act, 1969 (N.B.), c. 14 is valid.
Section 23C of The Evidence Act, R.S.N.B. 1952, c. 74 being valid has the effect of making ss. 11(1) and (3) of the Official Languages Act, R.S.C. 1970, c. O-2, operative in New Brunswick. The fact that s. 23C refers to “any language” rather than “English and French” does not alter the position. That it is a provincial law which confers a discretion on the judges of the courts of a province “as to the language in which ... proceedings may be conducted ...” is sufficient to render ss.11(1) and (3) operative in that province.
Lord’s Day Alliance of Canada v. Attorney General of B.C., [1959] S.C.R. 497; In re Vancini (1904), 34 S.C.R. 621; Murphy v. C.P.R., [1958] S.C.R. 626; Whiteman v. Sadler, [1910] A.C. 514; Regina v. Murphy, ex parte Belisle and Moreau (1968), 69 D.L.R. (2d) 530; McKay v. The Queen, [1965] S.C.R. 798, referred to.
APPEAL and CROSS-APPEAL from a judgment of the Supreme Court of New Brunswick, Appeal Division[1] on a Reference by the Lieutenant Governor in Council of New Brunswick. Appeal dismissed, cross-appeal allowed with no
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order as to costs.
J.T. Thorson, Q.C., and G.I. Milton, for the appellant.
J.J. Robinette, Q.C., and T.B. Smith, Q.C., for the Attorney General of Canada.
G.F. Gregory, Q.C., and S.J. Savoie, for the Attorney General of New Brunswick.
Jean Leahy, Q.C., Ross Goodwin, and Gilles Tremblay, for the Attorney General of Quebec.
The judgment of the Court was delivered by
THE CHIEF JUSTICE—This appeal and cross-appeal arise out of a reference by the Lieutenant-Governor in Council of New Brunswick of five questions to the New Brunswick Supreme Court, Appeal Division, pursuant to Order in Council 72-536, dated July 19, 1972, made under s. 24A of the Judicature Act, R.S.N.B. 1952, c. 120 as amended. By an order of September 12, 1972, the appellant Jones was declared to be a person entitled to be heard on the Reference and he was joined as a party thereto.
The questions that were referred for answer were as follows:
1. Are subsections (1), (3) and (4) of section 11 of the Official Languages Act, R.S.C. 1970, c. O-2, within the legislative competence of the Parliament of Canada, in so far as they purport to be applicable to proceedings in criminal matters in courts of criminal jurisdiction in the Province of New Brunswick?
2. Is section 23C of the Evidence Act, R.S.N.B. 1952, c. 74, within the legislative competence of the Legislature of New Brunswick?
3. Is section 14 of the Official Languages of New Brunswick Act, S.N.B. 1969, c. 14, within the legislative competence of the Legislature of New Brunswick?
4. If subsections (3) and (4) of section 11 of the Official Languages Act and section 23C of the Evidence Act are intra vires the Parliament of Canada and the Legislature of New Brunswick, respectively, does section 23C of the Evidence Act have the effect of making subsections (1) and (3) of section 11 of the Official Languages Act operative in New Brunswick?
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5. If question 4 is answered in the negative and section 14 of the Official Languages of New Brunswick Act is intra vires the Legislature of New Brunswick, will section 14 of the said Act, when proclaimed, have the effect of making subsections (1) and (3) of section 11 of the Official Languages Act operative in New Brunswick?
The three members of the Court who considered the questions (Hughes C.J.N.B., Limerick and Bugold JJ.A.) were unanimous in answering the first three questions in the affirmative. Chief Justice Hughes, in dissent from the other members of the Court, answered question 4 as follows:
Section 23C of the Evidence Act has the effect of making subsection (3) of section 11 of the Official Languages Act operative in New Brunswick. Subsection (1) of section 11 of the Act became operative when the Act became law.
In view of this answer, he found it unnecessary to answer question 5. Limerick and Bugold JJ.A. answered question 4 in the negative and question 5 in the affirmative.
The appellant Jones asks this Court to answer the first three questions in the negative, and asks also, if his submissions thereon be accepted, that no answers be given to questions 4 and 5. The Attorney General of New Brunswick cross-appeals in respect of the answer to question 4, submitting that it should be that given by Chief Justice Hughes. The Attorney General of Canada and the Attorney General of Quebec intervened, as permitted by order of Chief Justice Fauteux, and were represented by counsel who supported the position of the Attorney General of New Brunswick.
It will be convenient to set out at this point the legislative provisions which were the subject of the questions referred for determination. Section 11(1), (3) and (4) of the Official Languages Act, R.S.C. 1970, c. O-2 reads as follows:
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11. (1) Every judicial or quasi-judicial body established by or pursuant to an Act of the Parliament of Canada has, in any proceedings brought or taken before it, and every court in Canada has, in exercising in any proceedings in a criminal matter any criminal jurisdiction conferred upon it by or pursuant to an Act of the Parliament of Canada, the duty to ensure that any person giving evidence before it may be heard in the official language of his choice, and that in being so heard he will not be placed at a disadvantage by not being or being unable to be heard in the other official language.
(3) In exercising in any proceedings in a criminal matter any criminal jurisdiction conferred upon it by or pursuant to an Act of the Parliament of Canada, any court in Canada may in its discretion, at the request of the accused or any of them if there is more than one accused, and if it appears to the court that the proceedings can effectively be conducted and the evidence can effectively be given and taken wholly or mainly in one of the official languages as specified in the request, order that, subject to subsection (1), the proceedings be conducted and the evidence be given and taken in that language.
(4) Subsections (1) and (3) do not apply to any court in which, under and by virtue of section 133 of the British North America Act, 1867, either of the official languages may be used by any person, and subsection (3) does not apply to the courts of any province until such time as a discretion in those courts or in the judges thereof is provided for by law as to the language in which, for general purposes in that province, proceedings may be conducted in civil causes or matters.
Section 23C of the Evidence Act of New Brunswick, R.S.N.B. 1952, c. 74, as enacted by 1967, c. 37 is in these terms:
23C. In any proceeding in any court in the Province, at the request of any party, and if all the parties to the action or proceedings and their counsel have sufficient knowledge of any language, the Judge may order that the proceedings be conducted and the evidence given and taken in that language.
And s. 14 of the Official Languages of New Brunswick Act, 1969 (N.B.), c. 14 is as follows:
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14. (1) Subject to section 16, in any proceeding before a court, any person appearing or giving evidence may be heard in the official language of his choice and such choice is not to place that person at any disadvantage.
(2) Subject to subsection (1), where
(a) requested by any party, and
(b) the court agrees that the proceedings can effectively be thus conducted;
the court may order that the proceedings be conducted totally or partially in one of the official languages.
Although only part of one section of the Official Languages Act was made the subject of the Reference, it is an integral part of that Act in advancing its overall purpose as stated in s. 2. This section reads:
The English and French languages are the official languages of Canada for all purposes of the Parliament and Government of Canada, and possess and enjoy equality of status and equal rights and privileges as to their use in all the institutions of the Parliament and Government of Canada.
This deliberate limitation of the official character of English and French to their use in the institutions of the Parliament and Government of Canada is relevant to any issue of the concurrent authority of the provincial legislatures in relation to the use of English and French in provincial governmental agencies or, indeed, in respect of activities that fall within exclusive provincial competence. In short, no question arises as to the power of the Parliament of Canada to give official status and equality to English and French throughout Canada and in respect of any operations or activities which are otherwise within exclusive provincial competence; Parliament has not attempted to go that far. Of course, the limitation expressed in s. 2 aforesaid does not relieve this Court from the duty of examining particular provisions of the Official Languages Act which are challenged as unconstitutional, either because they do not conform to the limitation generally expressed in s. 2 or because they are in any event beyond
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federal legislative power.
The appellant has mounted a challenge in this last mentioned aspect on two main grounds. It was contended by his counsel that s. 133 of the British North America Act foreclosed the Parliament of Canada from enacting not only s. 11(1), (3) and (4) of the Official Languages Act but also the Act as a whole. The second main contention was that s. 91(1) of the British North America Act, enacted by 1949 (U.K.), c. 81, not only preserved the foreclosing effect of s. 133 but, independently, precluded Parliament from enacting the Official Languages Act. I reproduce s. 133 and s. 91(1) at this point before going on to consider the submissions of the various counsel on the two issues just mentioned. Section 133 reads:
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 any or all 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.
Section 91(1) is as follows:
It shall be lawful for the Queen by and with the Advice and Consent of the Senate and House of Commons, to make Laws for the Peace, Order, and good Government of Canada, in relation to all Matters not coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces; and for greater Certainty, but not so as to restrict the Generality of the foregoing Terms of this Section, it is hereby declared that (notwithstanding anything in this Act) the exclusive Legislative Authority of the Parliament of Canada extends to all Matters coming within the Classes of Subjects next
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hereinafter enumerated; that is to say,—
1. The amendment from time to time of the Constitution of Canada, except as regards matters coming within the classes of subjects by this Act assigned exclusively to the Legislatures of the provinces, or as regards rights or privileges by this or any other Constitutional Act granted or secured to the Legislature or the Government of a province, or to any class of persons with respect to schools or as regards the use of the English or the French language or as regards the requirements that there shall be a session of the Parliament of Canada at least once each year, and that no House of Commons shall continue for more than five years from the day of the return of the Writs for choosing the House: provided, however, that a House of Commons may in time of real or apprehended war, invasion or insurrection be continued by the Parliament of Canada if such continuation is not opposed by the votes of more than one-third of the members of such House.
Apart from the effect of s. 133 and s. 91(1), to be considered later in these reasons, I am in no doubt that it was open to the Parliament of Canada to enact the Official Languages Act (limited as it is to the purposes of the Parliament and Government of Canada and to the institutions of that Parliament and Government) as being a law “for the peace, order and good government of Canada in relation to [a matter] not coming within the classes of subjects ... assigned exclusively to the Legislatures of the Provinces”. The quoted words are in the opening paragraph of s. 91 of the British North America Act; and, in relying on them as constitutional support for the Official Languages Act, I do so on the basis of the purely residuary character of the legislative power thereby conferred. No authority need be cited for the exclusive power of the Parliament of Canada to legislate in relation to the operation and administration of the institutions and agencies of the Parliament and Government of Canada. Those institutions and agencies are clearly beyond provincial reach.
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In so far as s. 11(1), (3) and (4) of the Official Languages Act concerns the use of English and French as official languages in proceedings before judicial or quasi-judicial bodies competently established under federal authority, and in criminal proceedings before any Court in Canada whose exercise of criminal jurisdiction is competently authorized by the Parliament of Canada (these bodies and courts not being dependent institutions or agencies of Parliament or the Government of Canada), it is similarly necessary to determine whether the language provisions so made invade provincial jurisdiction. As to that, I am likewise in no doubt that it was within Parliament’s authority under the opening words of s. 91, already quoted, under s. 101 of the British North America Act, and particularly under s. 91(27) so far as s. 11(3) of the Official Languages Act is concerned, to enact the challenged s. 11(1), (3) and (4). Section 101 provides as follows:
The Parliament of Canada may, notwithstanding anything in this Act, from time to time provide for the constitution, maintenance and organization of a General Court of Appeal for Canada, and for the establishment of any additional Courts for the better administration of the laws of Canada.
Section 91(27) specifies as among the enumerated powers vested exclusively in the Parliament of Canada:
The Criminal Law, except the Constitution of Courts of Criminal Jurisdiction, but including Procedure in Criminal Matters.
One matter that was canvassed before the New Brunswick Supreme Court, Appeal Division, but not before this Court was the allegation of unconstitutional delegation, said to reside in s. 11(4) of the Official Languages Act. I need say no more than was said on this point by Chief Justice Hughes who invoked the principle expressed in Lord’s Day Alliance of
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Canada v. Attorney General of B.C.[2], and on this basis rightly rejected the allegation.
In making a specific attack upon the validity of s. 11(3) of the Official Languages Act, counsel for the appellant submitted that it was colourable legislation whose purpose was to evade the constitutional limitation upon language legislation said by him to reside in s. 133 of the British North America Act. This is part of the overarching contention urged by the appellant against the Official Languages Act as a whole, but subject to the merit of that contention which I shall examine later in these reasons, I am of the opinion that the respondent and the intervenors were correct in supporting the conclusion of the New Brunswick Supreme Court, Appeal Division, that s. 91(27) of the British North America Act provided adequate support for the enactment of s. 11(3). I point out, in addition, that it is within federal legislative competence to impose duties upon provincially-appointed judicial officers in respect of matters falling within federal legislative authority, as for example, the criminal law and its administration: see In re Vancini[3]. A fortiori, it is within federal competence to repose a discretion in such officers in relation to the administration of the federal criminal law, albeit in courts established under provincial legislation.
It was the submission of counsel for the Attorney General of Canada, which I accept, that the language in which criminal proceedings are conducted, whether documents are involved or oral conduct only or both, may be brought within the legislative authority conferred by s. 91(27) of the British North America Act; and so
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far as s. 91(27) is alone the source of authority for the specification of language in which the criminal law is to be written or in which criminal proceedings thereunder are to be conducted, Parliament’s authority is paramount.
I come now to the submissions on ss. 133 and 91(1) of the British North America Act. The submission as to s. 133 by counsel for the appellant is that that provision is exhaustive of constitutional authority in relation to the use of English and French, and that a constitutional amendment is necessary to support any legislation which, like the Official Languages Act, would go beyond it. I do not accept that submission which, in my opinion, is unsupportable under the language of s. 133, unsupportable as a matter of such history thereof as is available, and unsupportable under the scheme of distribution of legislative power as established by the British North America Act and as construed by the Courts over a long period of time.
I do not think that any assistance on the scope or effect of s. 133 can be obtained from such governmental documents as “A Canadian Charter of Human Rights” published in 1968, or “Federalism for the Future”, also published in 1968, or the Final Report of the Royal Commission on Bilingualism and Biculturalism Volume 1, “The Official Languages”, published in 1967. What those documents recommend, in relation to what I may term linguistic rights and going beyond the specifications of s. 133, is constitution entrenchment, but that is hardly a support for the contention that there can be no advance upon s. 133 without constitutional amendment. Certainly, what s. 133 itself gives may not be diminished by the Parliament of Canada, but if its provisions are respected there is nothing in it or in any other parts of the British North America Act (reserving for later consideration s. 91(1)) that precludes the conferring of additional rights or privileges or the imposing of additional obligations respecting the use of English
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and French, if done in relation to matters within the competence of the enacting Legislature.
The words of s. 133 themselves point to its limited concern with language rights; and it is, in my view, correctly described as giving a constitutionally based right to any person to use English or French in legislative debates in the federal and Quebec Houses and in any pleading or process in or issuing from any federally established Court or any Court of Quebec, and as imposing an obligation of the use of English and French in the records and journals of the federal and Quebec legislative Houses and in the printing and publication of federal and Quebec legislation. There is no warrant for reading this provision, so limited to the federal and Quebec legislative chambers and their legislation, and to federal and Quebec Courts, as being in effect a final and legislatively unalterable determination for Canada, for Quebec and for all other Provinces, of the limits of the privileged or obligatory use of English and French in public proceedings, in public institutions and in public communications. On its face, s. 133 provides special protection in the use of English and French; there is no other provision of the British North America Act referable to the Parliament of Canada (apart from s. 91(1)) which deals with language as a legislative matter or otherwise. I am unable to appreciate the submission that to extend by legislation the privileged or required public use of English and French would be violative of s. 133 when there has been no interference with the special protection which it prescribes. I refer in this respect particularly to s. 11(4) of the Official Languages Act, already quoted.
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History does not support the appellant’s contention. I need go back no farther than s. 41 of the Act of Union, 1840 (U.K.), c. 35 which reads as follows:
And be it enacted that from and after the said Re-union of the said Two Provinces, all Writs, Proclamations, Instruments for summoning and calling together the Legislative Council and Legislative Assembly of the Province of Canada and for proroguing and dissolving the same, and all Writs of Summons and Election, and all Writs and public Instruments whatsoever relating to the said Legislative Council and Legislative Assembly or either of them, and all Returns to such Writs and Instruments, and all Journals, entries, and written or printed Proceedings of what Nature soever of the said Legislative Council and Legislative Assembly and each of them respectively, and all written or printed Proceedings and Reports of Committees of the said Legislative Council and Legislative Assembly respectively, shall be in the English language only: Provided always, that this Enactment shall not be construed to prevent translated copies of any such Documents being made, but no such Copy shall be kept among the Records of the Legislative Council or Legislative Assembly, or be deemed in any Case to have the Force of an original Record.
This provision for the use of English only was repealed by 1848 (U.K.), c. 56, and judicial notice may be taken of the fact that following that repeal statutes of the Province of Canada were enacted in both English and French.
Among the Quebec Resolutions that were approved at the Conference in 1864, which was a prelude to Confederation in 1867, was Resolution 46, which became Resolution 45 at the London (Westminster Palace Hotel) Conference in 1866. It was as follows:
Both the English and French Languages may be employed in the general Parliament and in its proceedings and in the local Legislature of Lower Canada, and also in the Federal courts and in the courts of Lower Canada.
As it emerged in s. 133, this Resolution had an obligatory aspect added to its provision for the
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use of English or French. In establishing equality of use of the two languages, s. 133 did so in relation to certain proceedings of a public character in specified legislative operations and in specified Courts, but it went no farther.
I am unable to agree that an implicit constitutional limitation must be read into the British North America Act as a deduction from the enactment of s. 133. This is the burden of the appellant’s submission and, in my opinion, it runs counter to the principle of exhaustiveness which the Courts have ascribed to the distribution of legislative power under the British North America Act.
That principle was stated by the late Mr. Justice Rand in Murphy v. C.P.R.[4], at p. 643, as follows:
It has become a truism that the totality of effective legislative power is conferred by the Act of 1867, subject always to the express or necessarily implied limitations of the Act itself.
Section 91(1) aside, there are no express limitations on federal legislative authority to add to the range of privileged or obligatory use of English and French in institutions or activities that are subject to federal legislative control. Necessary implication of a limitation is likewise absent because there would be nothing inconsistent or incompatible with s. 133, as it relates to the Parliament of Canada and to federal Courts, if the position of the two languages was enhanced beyond their privileged and obligatory use under s. 133. It is one thing for Parliament to lessen the protection given by s. 133; that would require a constitutional amendment. It is a different thing to extend that protection beyond its present limits.
Heavy reliance was placed by the appellant upon the canon of interpretation expressed in the maxim expressio unius est exclusio alterius. This maxim provides at the most merely a guide
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to interpretation; it does not pre-ordain conclusions. I find it inapt as a measure of what s. 133 embraces; indeed, it serves no purpose to that end. There is no attempt in the present case to bring something within s. 133 which is not expressly there; there is no attempt here to add to the constitutional reach of s. 133. It stands unimpeached, and it is rather outside of it, and under the grants of legislative power which leave it untouched, that Parliament has acted. Lord Dunedin’s statement in Whiteman v. Sadler[5], at p. 527 (which the appellant invoked) that “it seems to me that express enactment shuts the door to further implication. ‘Expressio unius est exclusio alterius’” is a conclusion upon his construction of a particular section of a statute. It does not assist in the present case.
It remains to consider the effect of s. 91(1) of the British North America Act which confers legislative power upon Parliament in relation to “the amendment from time to time of the Constitution of Canada” except, inter alia, “as regards the use of the English or French language”. The contention of the appellant is that this exception was designed not only to maintain the integrity of s. 133 but went beyond it to enlarge the limitations thereof by embracing any use of the English or French language beyond what s. 133 itself prescribed. This contention would turn the exception from a grant of a new power under s. 91(1) into a general substantive limitation unrelated to that power, and it is untenable. I am not called upon here to state exhaustively what is comprehended within the phrase in s. 91(1) “the Constitution of Canada”. It certainly includes the British North America Act, 1867 and its amendments, and hence includes s. 133. What is excepted from Parliament’s amending power under s. 91(1) includes an exception as regards the use of the English or French language. Parliament is forbidden to amend the Constitution of Canada as regards
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the use of either of the languages, and s. 91(1) therefore points to the provisions of the Constitition dealing therewith, and thus to s. 133. See Scott, “The British North America (No. 2) Act, 1949” (1950), 8 Univ. of Tor. LJ. 201, at p. 205.
I turn finally to the answers that I would give to the questions referred to the New Brunswick Supreme Court, Appeal Division. For the reasons I have already given, I would answer question 1 in the affirmative. Question 2, respecting the validity of s. 23C of the provincial Evidence Act should also be answered in the affirmative. In my view, 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, it was open to the Legislature of New Brunswick to legislate respecting the languages in which proceedings in Courts established by that Legislature might be conducted. This includes the languages in which evidence in those Courts may be given. Section 92(14) of the British North America Act, 1867 is ample authority for such legislation. For the same reason, I would answer question 3, respecting the validity of s. 14 of the Official Languages of New Brunswick Act, in the affirmative.
In Regina v. Murphy, ex parte Belisle and Moreau[6], the New Brunswick Supreme Court, Appeal Division, held that s. 23C could not have any application to criminal proceedings in a provincial Court, in the absence of federal legislation making it applicable. The holding was that it could not apply of its own force despite its general wording (“In any proceeding in any Court in the Province”), and was not made applicable by s. 36 of the Canada Evidence Act, R.S.C. 1952, c. 307 because it was not a law of
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evidence within that provision. What the New Brunswick Supreme Court, Appeal Division, did in effect was to limit the scope of s. 23C to civil and penal matters within provincial legislative jurisdiction, in accordance with the principle expressed by this Court in McKay v. The Queen[7]. I do not think that there is the same antinomy in the present case as existed in the McKay case; rather, the situation here is one for the application of a doctrine of concurrency of legislative authority subject to the para-mountcy of federal legislation.
As to question 4, it appears to me that s. 11(1) and (3) are so intertwined that they are appropriately joined as the subject of the inquiry in the question. I do not think there is any gain of substance in the conclusion of Hughes C.J.N.B. and of Limerick J.A. that s. 11(1) of the Official Languages Act is not dependent under s. 11(4) upon the effectiveness of s. 23C of the provincial Evidence Act to activate s. 11(3), and that therefore s. 11(1) came into force when the Official Languages Act was proclaimed. However the matter is put, the critical point is whether s. 23C is such provincial legislation as is envisaged by s. 11(4) of the Official Languages Act. The majority of the New Brunswick Supreme Court, Appeal Division, was of the opinion that s. 23C was too wide in its expression to satisfy s. 11(4) because it did not limit the discretion of the Court or judge to either English or French, within the purport of s. 11(4), but gave a discretion with respect to “any language”. I am of the opinion that the cross-appeal of the Attorney General of New Brunswick on the negative answer to this question should succeed and that it should be answered in the affirmative.
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I agree with Hughes C.J.N.B. that s. 11(4) is met by s. 23C although the latter for its purposes refers to “any language”; s. 23C is in that respect still a provincial law which vests in the provincial Courts or in the judges thereof a discretion “as to the language in which for the general purposes [in the Province] proceedings may be conducted in civil causes or matters”. It is, in my view, unnecessary to limit the words “the language” in s. 11(4) to English or French in order to activate s. 11(3); the activation, as in this case, itself has the effect of limiting the range of languages in criminal proceedings in provincial Courts to English or French.
In the result, it is unnecessary to answer question 5 (which is prefaced by the words “If question 4 is answered in the negative”) but I would observe, in concurrence with Hughes C.J.N.B. that s. 14 of the Official Languages of New Brunswick Act satisfies the requirements of s. 11(4) no less than does s. 23C of the provincial Evidence Act.
In summary, the answers I would give to the questions which were the subject of the reference by the Lieutenant-Governor in Council of New Brunswick are as follows:
Question 1: Yes
Question 2: Yes
Question 3: Yes
Question 4: Yes
Question 5: No answer required.
It follows from my answers that I would dismiss the appeal and allow the cross-appeal. This is not a case for any order as to costs.
Appeal dismissed; cross appeal allowed; no order as to costs.
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Solicitor for the appellant: G. Irving Milton, Moncton.
Solicitor for the respondent, the Attorney General of Canada: D.S. Maxwell, Ottawa.
Solicitor for the respondent, the Attorney General for New Brunswick: Gordon F. Gregory, Fredericton.
Solicitor for the intervenant, the Attorney General for Quebec: Jean Leahy.