Defining “Constitution of the province” – The Crux of the
Manitoba Language Controversy
Margaret A. Banks*
The author presents an historical account of
the passage by the Manitoba Legislature in
1890 of the Official Language Act, which
abolished the use of the French language in
the courts and the Legislature of the prov-
ince. She examines the constitutional validity
of the Legislature’s action under the now-
repealed subsection 92(1) of the Constitution
Act, 1867, which allowed a legislature to amend
the “Constitution of the province, except as
regards the Office of the Lieutenant Gover-
nor.” The author argues that the historical
ambiguity of the term “Constitution of the
province” allowed the government to pass
the Act, which has since been found ultra vires
by the Supreme Court of Canada. She con-
cludes that the lack of any firm definition of
such terms can only lead to future constitu-
tional controversies.
Lauteur pr~sente un compte-rendu histo-
rique de l’adoption, par la Legislature du
Manitoba en 1890, du Official Language Act
qui abolissait l’usage du franais dans les tri-
bunaux et A la Legislature de la province. Elle
6tudie la validit6 constitutionnelle de l’action
legislative A ]a lumiere du paragraphe 92(1)
(aujourd’hui abrog6) de la Loi constitu-
tionnelle de 1867, qui permettait A la legis-
lature d’amender la (constitution de ]a pro-
vince, sauf les dispositions relatives i la charge
de lieutenant-gouvemeur. ) Lauteur soutient
que l’ambiguit6 historique des termes ( cons-
titution de la province > est responsable du
fait que le gouvernement ait adopt6 une loi
qui flit, par la suite, declar6e ultra vires par
la Cour supreme du Canada. Elle conclut que
l’absence dune d6finition pr6cise de ces termes
ne peut que mener i de nouvelles contro-
verses constitutionnelles.
‘Librarian and Associate Professor, Faculty of Law, University of Western Ontario. This is
an amended version of a paper prepared for presentation at the Tenth Anniversary Conference
of the British Association for Canadian Studies, held at the University of Edinburgh, 9-12
April 1985. I wish to thank the SSHRCC for awarding me a travel grant to attend this Con-
ference. I also acknowledge the support of the Faculty of Law of the University of Western
Ontario, through the Law Foundation of Ontario, which enabled me to hire a research assistant
during the summer of 1984 to work on a larger project on the Constitution of Canada, of which
this paper forms a part. I am grateful to my research assistant, Ian Shewan (LL.B. Western
Ontario) who did much of the research on which this paper is based.
McGill Law Journal 1986
Revue de droit de McGill
1986]
NOTES
When Manitoba became Canada’s fifth province in 1870, its population
“was approximately 55 percent French speaking and 45 percent English
speaking, although it is clear that many members of each community were,
in fact, able to speak both of those languages.”1 It was therefore not sur-
prising that the Manitoba Act, 1870, 2 the federal statute which provided for
the government of the new province, should contain a section authorizing
the use of either language in the Legislature and Courts of the province and
requiring the use of both languages in legislative records, journals and acts.
The relevant section reads as follows:
Either the English or the French language may be used by any person in the
debates of the Houses of the Legislature, and both those languages shall be
used in the respective Records and Journals of those Houses; and either of
those languages may be used by any person, or in any Pleading or Process, in
or issuing from any Court of Canada established under the British North Amer-
ica 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. 3
The similarity between section 23 of the Manitoba Act and section 133
of the Constitution Act, 18674 should be noted immediately. The latter reads
as follows:
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 all 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.5
Section 133 was intended to safeguard specific rights of the French-speaking
minority in Canada and the English-speaking minority in Quebec. The
immediate intent of section 23 of the Manitoba Act was to safeguard the
rights of the large English-speaking minority in Manitoba. If a shift in pop-
ulation rendered the French-speaking group the minority, the Act would
then presumably protect French-language rights in the Legislature and the
‘Manitoba, Legislative Assembly, Debates and Proceedings at 2002 (7 April 1980, S. Lyon,
presenting for second reading An Act Respecting the Operation of Section 23 of the Manitoba
Act in Regard to Statutes).
2An Act to Amend and Continue the Act 32 and 33 Victoria, Chapter 3; and to Establish and
Provide for the Government of the Province of Manitoba, S.C. 1870, c. 3, reprinted in R.S.C.
1970, App. II at 247 [hereinafter the Manitoba Act, 1870].
3Ibid., s. 23.
4Constitution Act, 1867 enacted as British North America Act, 1867 (U.K.), 30 & 31 Vict.,
c. 3.
sIbid., s. 133.
McGILL LAW JOURNAL
[Vol. 31
Courts. At the time of passage, these provisions do not appear to have
aroused much interest or controversy; there was neither debate on clause
23 nor any amendment to it during the committee stage of the Bill.6 Again
this is not surprising; the bilingual nature of the population of the new
province made such provisions essential.
In 1870 it seemed likely that the surplus population of both English-
and French-speaking Canada would settle in Manitoba and that the bilingual
character of the new province would be maintained. The pattern of immi-
gration, however, turned out to be quite different. Most of the settlers who
arrived in the 1870s and 1880s came from English-speaking rural Ontario,
whereas French-speaking Quebeckers who chose to leave their province
tended to go south to the New England states. By the mid-1880s French-
speaking Manitobans had become a definite minority.7
As French declined in importance, English-speaking Manitobans
increasingly objected to the maintenance of bilingualism in the Legislature
and Courts of the province, on the grounds that it was irrelevant, cumber-
some and expensive. The Liberal government of Premier Thomas Green-
way, which took office after the general election of 1888, responded to this
sentiment by sponsoring changes in the province’s language laws. By Order
in Council in September 1889, the government suspended publication of
the French part of the Manitoba Gazette. This action, it might be argued,
was not in conflict with section 23 of the Manitoba Act because the Manitoba
Gazette was not a record, journal or act of the Legislature. The Gazette had,
however, been published in both languages since the province was estab-
lished in 1870 and the change to English only was a first step towards making
the province officially unilingual.8
The next step was peculiar, though the approach may have been inten-
tional. Early in February 1890, Premier Greenway gave notice of a motion
6Canada, House of Commons Debates at 1407-38 (9 May 1870).
7Debates and Proceedings, supra, note 1 at 2002-3. For a more detailed description of the
pattern of immigration to Manitoba, see W.L. Morton, Manitoba: A History (Toronto: Uni-
versity of Toronto Press, 1967) c. 7-10.
8An article, “French Wiped Out” Manitoba Daily Free Press (12 February 1890) 4 at 4,
reported the defeat of a motion in the Legislative Assembly protesting the suspension of the
French part of the Manitoba Gazette by Order in Council in September 1889. Since regulations
that can properly be described as delegated legislation have now been included in the definition
of “Acts of the Legislature” and these regulations are published in the Manitoba Gazette, there
is presumably a requirement to publish the Gazette or at least part of it in both official languages.
See Reference Re Manitoba Language Rights (1985), [1985] 1 S.C.R. 721 at 743-44, (sub nom.
Reference Re Language Rights under the Manitoba Act, 1870) 19 D.L.R. (4th) 1 at 18-19.
1986]
NOTES
to amend the rules of the House in various particulars, the principal amend-
ment being to strike out the words “in both languages” from the rule con-
cerning publication of records and journals.9 This move was peculiar in that
it was clearly unconstitutional to change a rule that was based on a con-
stitutional or statutory requirement; if such a change was desired, the higher-
ranking document should have been amended first by the authority that
had the power to do it. The Greenway government may have adopted the
approach it did, however, to make it appear that this was a simple change
to the rules, rather than a constitutional or statutory amendment.
This approach did not go uncontested. During the debate on the motion
there were assertions that proposed changes in the rules of the House were
usually referred to a special committee, but Premier Greenway, quoting
Bourinot,’ 0 insisted that the House had power to amend its rules without
the advice of such a committee. The first edition of Bourinot’s Parliamentary
Procedure and Practice had been published in 1884; it noted that when a
revision of the rules was considered necessary, a special committee was
generally appointed, but that rules might be amended or repealed by the
House, on giving the notice required for all motions.II Here Bourinot appears
to have been making a distinction between a complete revision of the rules
and the amendment or repeal of individual rules. The Greenway motion
clearly dealt with amendments rather than with a complete revision and
was thus arguably in order. The problem, however, was that it proposed to
amend at least one rule in a way that would make it conflict with section
23 of the Manitoba Act. A legislative body normally has the power to amend
its rules, but not in a way that will make them conflict with the laws of the
province or the country. In spite of the protest of a French-speaking member
that the Greenway motion was out of order, the Speaker ruled (probably
incorrectly) in the Government’s favour. 2 Consequently, on 11 February
1890, the rules were amended as the Greenway government desired.’ 3
The Government’s next step was a more daring one. Later in the same
session, it introduced in the Legislature An Act to Provide that the English
Language shall be the Official Language of the Province of Manitoba. 14 The
Bill was a short one and its text bore no reference to official language. The
first of its two sections read as follows:
Any statute or law to the contrary notwithstanding, the English language only
shall be used in the records and journals of the House of Assembly for the
9″The First Skirmish” Manitoba Daily Free Press (4 February 1890) 5 at 5.
10Reported in “French Wiped Out”, supra, note 8 at 4.
1J.G. Bourinot, Parliamentary Procedure and Practice (Montreal: Dawson Bros, 1884) at
213-15.
12Reported in “French Wiped Out”, supra, note 8 at 4.
13lbid. at 5.
14S.M. 1890, c. 14 [hereinafter the Official Language Act].
REVUE DE DROIT DE McGILL
[Vol. 31
Province of Manitoba, and in any pleadings or process in or issuing from any
court in the Province of Manitoba. The Acts of the Legislature of the Province
of Manitoba need only be printed and published in the English language. 15
The second section seemed to suggest that the Greenway government had
doubts about the constitutionality of the legislation it was sponsoring. “This
Act”, it stated, “shall only apply so far as this Legislature has jurisdiction
so to enact.”‘ 16
During the debate on second reading of the Bill on 19 March 1890, the
Attorney General indicated that its intent was “to give effect to the general
policy of the House with respect to the use of one language.” Referring to
section 2, James Prendergast, 17 a leading opponent of the Bill, asserted that
“it would be as sensible for the legislature to pass an act with reference to
the office of the Governor-General and to add this saving clause.” Joseph
Martin, the Attorney General,’ 8 declared bluntly that the Bill would place
the French language in Manitoba on exactly the same footing as any other
“foreign language” and demanded to know what right the French had to
use their language officially in that province. When Prendergast replied “Ij]ust
the same right that the English minority has to use English in the Province
of Quebec”, another member, James Harrower, retorted, “[t]hat’s a very
different thing.” Attorney-General Martin elaborated this point of view by
explaining that the English in Quebec were using the language of the British
Empire of which Canada was a part.19 Historically, there might have been
some justification for this argument, but constitutionally there was none:
section 133 of the Constitution Act, 1867 and section 23 of the Manitoba
‘5lbid., s. 1.
16Ibid., s. 2.
17James tmile Pierre Prendergast, born and educated in Quebec City, had been a member
of the Legislative Assembly of Manitoba since 1885. Originally a supporter of the Greenway
government, he had been a member of the Executive Council, serving as Provincial Secretary
from January 1888 to August 1889. He resigned because of differences with his colleagues
regarding the language and schools questions. The 1889 Canadian Parliamentary Companion
(Ottawa: Durie, 1889) at 343 described him as a Liberal; in the next edition (Ottawa: Durie,
1891) at 356, he is listed as a Conservative-Liberal.
18A native of Ontario, Joseph Martin is not to be confused with Alphonse Fortunat Martin,
a Franco-Manitoban member of the Legislative Assembly, originally from Rimouski, Quebec,
who favoured “the maintenance of the dual language and Separate Schools”: 1891 Canadian
Parliamentary Companion, ibid. at 353.
19The debate on the second reading of the bill is reported in “A Busy Sitting” Manitoba
Daily Free Press (20 March 1890) 5 at 5.
1986]
NOTES
Act were equally the law of the land.20 The protests of the defenders of the
use of the French language were in vain. Commenting on them many years
later in his history of Manitoba, W.L. Morton wrote:
The French members, led by A.E Martin and Prendergast, made a spirited
defence of the rights of the French language, but they received no support and
no overt sympathy. It is plain from the reports of the debates that they expected
none, and had no hope of altering the determination of the majority, but were
speaking for the record and for posterity.21
Having passed its three readings in the Legislative Assembly, the Bill received
Royal Assent on 31 March 1890.22
An obvious question to ask is whether the Manitoba Legislature had
the authority to pass an act which was clearly in conflict with section 23 of
the Manitoba Act, a federal statute providing for the government of the
province. An intuitive response would surely be that a provincial legislature
cannot amend a federal statute. But of course the answer is not so simple.
Firstly, the status of the Manitoba Act is different from that of an ordinary
federal statute. British and Canadian authorities admitted at the time of its
passage to some doubt as to its constitutionality, and a United Kingdom
statute, the Constitution Act, 1871, was passed to confirm it and to attempt
to give the constitution of the Province of Manitoba the same status as the
constitutions of the four original provinces. 23 Specifically, it was provided
by section 6 of this Act that except with regard to the boundaries of the
201t is true that the 1867 Act is a statute of the United Kingdom, whereas the Manitoba Act,
1870 was passed by the Canadian Parliament. Since the Constitution Act, 1867 does not give
the Canadian Parliament authority to establish new provinces, the Constitution Act, 1871
enacted as British North America Act, 1871 (U.K.), 34 & 35 Vict., c. 28 was passed to confirm
the Manitoba Act and to give the Canadian Parliament authority to “establish new Provinces
in any territories forming… part of the Dominion of Canada” (s. 2). Although this provision
is said still to be in force (see Item 5 of the Schedule to the Constitution Act, 1982, being
Schedule B of the Canada Act 1982 (U.K.), 1982, c. 11), it must now be read in conjunction
with s. 42(f) of the Constitution Act, 1982, which provides that “notwithstanding any other
law or practice”, an amendment to the Constitution of Canada relating to the establishment
of new provinces “may be made only in accordance with subsection 38(l)”, that is, the general
procedure for amending the Constitution of Canada. See infra, notes 53-55.
2’Morton, supra, note 7 at 248.
22Noted in S.M. 1890, c. 14.
23Writing as Acting Minister of Justice, Sir George-ttienne Cartier had stated: “[I]t is abso-
lutely necessary that the province of Manitoba, as well as any which may hereafter be erected,
should hold the same status as the four provinces now [comprising] the Dominion, –
and
British Columbia, when it comes in, –
and, like them, should hold its constitution, subject
only to alteration by the Imperial Legislature.” Report of the Acting Minister of Justice (29
February 1871) Ottawa, reprinted in W.E. Hodgins, compiler, Correspondence, Reports of the
Ministers of Justice and Orders in Council upon the Subject of Dominion and Provincial Leg-
islation: 1867-1895 (Ottawa: Government Printing Bureau, 1896) 11.
McGILL LAW JOURNAL
[Vol. 31
province (and even in that case it needed the provincial legislature’s con-
sent), the Parliament of Canada did not have the power to amend the Man-
itoba Act, “so far as it relates to the Province of Manitoba”.2 4 But whether
the Legislature of Manitoba had power indirectly to amend section 23 of
the Manitoba Act depended on the definition of “Constitution of the
province”.
To determine the meaning of this term it is necessary to look at both
the Constitution Act, 1867, and the Manitoba Act, 1870. The former orig-
inally consisted of a preamble, eleven parts divided into 147 sections and
five schedules. The parts of particular concern are Parts V and IX. Part V
is entitled “Provincial Constitutions” and consists of sections 58-90 inclu-
sive. Part IX is entitled “Miscellaneous Provisions” and consists of sections
127-144 inclusive. The Manitoba Act, 1870, is not divided into parts, but
its sections are arranged in much the same order as those of the Constitution
Act, 1867; there are omissions from the former because some sections of
the latter are made to apply to Manitoba without having to be restated in
the Manitoba Act.2 5 A comparison of the two Acts will show that sections
6-21 of the Manitoba Act contain provisions comparable to some of those
included in the “Provincial Constitutions” part of the Constitution Act. For
instance, section 6 of the Manitoba Act corresponds to section 58 of the
Constitution Act; sections 59-62 of the Constitution Act are not restated in
the Manitoba Act, but under section 2 of the latter apply to that province.
Thus, it seems logical to conclude that sections 6-21 of the Manitoba Act
and any provisions contained in sections 58-90 of the Constitution Act that
apply to Manitoba are part of the Constitution of the Province of Manitoba.
A more difficult question is whether any other sections of either of these
Acts can be regarded as part of the “Constitution of the province”. In par-
ticular we are concerned with section 23 of the Manitoba Act which cor-
responds to section 133 of the Constitution Act; the latter section, as we
have seen, is outside the “Provincial Constitutions” Part.
The reason why it is important to define “Constitution of the province”
is because another section of the Constitution Act –
subsection 92(1) which
was included in Part VI, “Distribution of Legislative Powers” –
gave each
provincial legislature authority to amend “the Constitution of the province,
except as regards the Office of Lieutenant Governor.” Under section 2 of
the Manitoba Act, this provision applied to Manitoba; thus the Legislature
of Manitoba had authority to amend indirectly at least some sections of the
Manitoba Act and, as they affected that province, some sections of the
Constitution Act. For instance, section 9 of the Manitoba Act provided that
24Constitution Act, 1871, supra, note 20, s. 6. For the provisions relating to boundaries, see
s. 3.
25Manitoba Act, 1870, supra, note 2, s. 2.
1986]
NOTES
the Legislature of the province should consist of the Lieutenant Governor
and two Houses, the Legislative Council and the Legislative Assembly, while
sections 10-13 dealt with matters relating to the Legislative Council. In 1876,
an act of the Legislature of Manitoba abolished the Legislative Council,2 6
thus, in effect, indirectly amending section 9 and repealing sections 10-13
of the Manitoba Act. These sections were unquestionably part of the pro-
vincial constitution; the amendment and repeals did not relate to the office
of the Lieutenant Governor, so under subsection 92(1) of the Constitution
Act they were intra vires the Manitoba Legislature.27 But the constitution-
ality of the 1890 Act, altering the status of the French language, was open
to question because section 23 of the Manitoba Act, if treated as corre-
sponding to section 133 of the Constitution Act, 1867, was outside the “Pro-
vincial Constitutions” Part of the Act. Could sections other than 6 to 21 of
the Manitoba Act be regarded as part of the “Constitution of the province”
or not? The Greenway government’s contention presumably was that the
Manitoba Legislature could indirectly alter any section of the Manitoba Act
that did not pertain to the office of Lieutenant Governor, the boundaries
of the province, or to the province’s relations with Ottawa (for example,
representation of the province in the Parliament of Canada).28
Under section 90 of the Constitution Act, the Lieutenant Governor of
a province may reserve a bill passed by the Legislature for the signification
of the Governor General’s pleasure. Unless the Governor General assents
to it within one year of the day on which it was presented to the Lieutenant
Governor for signature, it does not come into force. On the other hand, if
the Lieutenant Governor assents to a bill, thus making it a law of the prov-
ince, the Governor General may disallow it within the same period.29 Although
these provisions have never been repealed they have gradually fallen into
disuse, but in 1890 they were still an important part of the Canadian Con-
stitution. As soon as the 1890 language Bill was passed by the Legislative
Assembly and before the Lieutenant Governor assented to it, James Pren-
dergast, on behalf of himself and five other members of the Manitoba Leg-
islature, wrote to Lieutenant Governor John Schultz “to most humbly submit
26An Act to Diminish the Expenses of the Legislature of the Province of Manitoba in Certain
Respects, S.M. 1876, c. 28, s. 2.
27S. 6 of the Constitution Act, 1871, supra, note 20, seems to restrict the amending power
of the Legislature of Manitoba to matters relating to elections. Surely this was not its intent
since one of the objects of the Act was to ensure that Manitoba’s status was the same as that
of the four original provinces. See supra, note 24.
28Manitoba Act, 1870, supra, note 2, ss 3-4.
29S. 90 of the Constitution Act, 1867 applies, with appropriate modifications, certain federal
provisions to the provinces. Among them are the provisions for reservation and disallowance
contained in ss 55-57.
–
REVUE DE DROIT DE McGILL
[Vol. 31
that the said bill is ultra vires, for reasons more fully set out in the mem-
orandum hereto annexed.”‘ 30 The memorandum is a well-written consti-
tutional document explaining in detail the similarity between section 133
of the Constitution Act and section 23 of the Manitoba Act, giving some
historical background, and showing conclusively that the language Bill was
ultra vires the Manitoba Legislature. 31 Although neither the letter nor the
memorandum requested the Lieutenant Governor to reserve the Bill, this
was presumably the intent. The Lieutenant Governor chose not to reserve
the Bill but, on 31 March 1890, the day that he assented to it, he forwarded
Prendergast’s letter and memorandum to the Secretary of State for Canada.32
These documents would help the federal government to decide whether to
advise the Governor General to disallow the Act.
Following Royal Assent, petitions were sent to the Governor General
requesting disallowance of the Official Language Act.33 One from “the French
Canadian Convention, Manitoba”, was described as “[t]he petition of Her
Gracious Majesty’s subjects of French origin in the province of Manitoba”. 34
Another was sent by the members of the Legislature who had supported
Prendergast’s appeal to the Lieutenant Governor; Prendergast did not sign
this petition, which was a much shorter and less effective document than
the earlier one.35
The protests of the French-speaking minority were once more in vain
for on 21 March 1891, as the time for disallowance was running out, Sir
John Thompson, Minister of Justice (later Prime Minister of Canada), rec-
ommended to the Governor General in Council that “the Act be left to its
operation. ‘ 36 His reasoning was as follows:
The power of the provincial legislature to amend or repeal this section
[i.e. section 23] of the Manitoba Act, so confirmed, admits of great doubt. The
validity of the Act under consideration may be very easily tested by legal
proceedings on the part of any person in Manitoba, who is disposed to insist
on the use of the French language in the pleadings and process of the courts
or in the journals and Acts of Assembly. As it is apparent that a large section
of the people of the province desire that English alone shall be used in such
matters, and that a very considerable section desire the provisions of [the]
ins, supra, note 23, 919.
30Letter from J.E.P Prendergast to J. Schultz (27 March 1890) Winnipeg, reprinted in Hodg-
31Reprinted in Hodgins, ibid. at 919-21.
32Letter from J. Schultz (Lieutenant Governor of Manitoba) to the Secretary of State (31
33See Letter from J. Schultz, ibid. at 921-26.
34Reprinted in Hodgins, supra, note 23, 921.
35Petition from Members representing the French population in the Legislature of Manitoba
March 1890) Winnipeg, reprinted in Hodgins, ibid., 918.
to the Governor General, reprinted in Hodgins, ibid., 925.
36Report of the Minister of Justice (21 March 1981) Ottawa, reprinted in Hodgins, ibid., 927
at 929.
1986]
NOTES
Manitoba Act upheld in this particular, there can be little doubt that a decision
of the legal tribunals will be sought at an early date, as to the validity of the
present legislation. A [j]udicial determination of that question will be more
permanent and satisfactory than a decision of it by the power of disallowance. 37
Thompson’s recommendation was approved by the Governor General in
Council on 4 April 1891.38
In an original unpublished version of this paper, I stated incorrectly
that the Minister of Justice was mistaken in his view that a court decision
would be sought at an early date. I did not then know about the case of
Pellant v. Hbert, in which Judge Prud’homme of the County Court of St
Boniface ruled in 1892 that the Official Language Act was ultra vires the
Legislature of Manitoba. In the course of his judgment he declared “[i]a
clause 133 de l’Acte de l’Amtrique britannique du Nord, ou son 6quivalente,
la clause 23, de l’Acte du Manitoba, ne tombe pas dans la s6rie ou les classes
de clauses r~gies par la titre ‘Constitutions Provinciales’, auquel r~fere la
clause 92.” The decision was published in Le Manitoba, a French-language
newspaper, on 9 March 1892.39 It was not reported in the law reports, how-
ever, and the Government and Legislature of Manitoba ignored it. After
being lost for many years, the reasons for judgment were published in 1981
at the end of an article by Professor Joseph Eliot Magnet.
There was a further challenge to the 1890 Act in 1909. Once again, in
the case of Bertrand v. Dussault, Judge Prud’homme declared the Act to be
ultra vires the Legislature of Manitoba. This case too was unreported and
apparently unknown or ignored until 1977, when it was discovered and
quoted in full by Mr Justice Monnin of the Manitoba Court of Appeal in
a dissenting judgment. 40
It seems astonishing that the Government and Legislature of Manitoba
paid no attention to these two cases and treated the 1890 Act, which con-
tinued to appear in successive revisions of the statutes, as if it were intra
vires the Manitoba Legislature. Perhaps they thought it was safe to ignore
the decisions of a County Court. It is even more surprising that French-
speaking Manitobans let the matter drop. The only reasonable explanation
seems to be that for them other concerns were more pressing. The Official
Language Act was not the only statute prejudicial to their interests that
37Ibid. at 928.
38See Report of the Minister of Justice approved by the Governor General in Council (4
April 1891) Ottawa, reprinted in Hodgins, supra, note 23, 926.
39Reprinted in J.E. Magnet, “Court Ordered Bilingualism” (1981) 12 R.G.D. 237 at 243.
40Re Forest and Registrar of Court of Appeal of Manitoba (1977), 77 D.L.R. (3d) 445 at 458-
62, [1977] 5 W.W.R. 347.
McGILL LAW JOURNAL
[Vol. 31
resulted from the 1890 legislative session. Two other acts concerning edu-
cation had also been passed 4′ and in the years following 1890 the Manitoba
schools question was to overshadow the Manitoba language controversy.42
Franco-Manitobans were more concerned about the use of French as a lan-
guage of instruction and Roman Catholic religious education in the schools
than they were about bilingualism in the Legislature and the Courts. The
schools question was part of their daily lives or of that of their children;
probably relatively few of them had business in the Courts or read any
records of the Legislature. For ninety years, then, the Legislature and the
Courts were unilingual.
Renewed interest in the Official Language Act arose in 1915 when part
of the Laurier-Greenway compromise, which had settled the Manitoba schools
question,43 was abrogated as a result of the provincial government’s decision
to make the teaching in languages other than English illegal. This led to
attacks on the constitutional validity of the Official Language Act; one case
relating to the question, Dumas v. Baribault, reached the Manitoba Court
of Appeal, but was not proceeded with there. 44
Not until 1979 did the Supreme Court of Canada have the opportunity
to question the constitutionality of the Official Language Act. In 1976, Georges
Forest, a resident of Manitoba, was charged with a parking violation and
sought an acquittal on the ground that the ticket was issued in English,
whereas it should have been in both English and French. This argument
was rejected and Forest was convicted in Provincial Court, being fined $5.00
and costs. He filed an appeal –
against the conviction in the
County Court of St Boniface. The Manitoba Attorney General argued that
the appeal was invalid because the documents, being in French, did not
comply with the Official Language Act. Forest contended that the Act itself
in French –
Education, S.M. 1890, c. 37.
41An Act Respecting Public Schools, S.M. 1890, c. 38; An Act Respecting the Department of
42
1n March 1890, the Greenway government suspended public funding of Roman Catholic
schools. Two Privy Council decisions upheld the validity of the Manitoba government’s law,
though they also affirmed the federal government’s power to restore the school privileges. The
Manitoba government’s action prompted considerable national debate and, in 1896, the Liberal
government of Wilfrid Laurier came to power in response to the Conservatives’ failure to
resolve the Manitoba schools question. Laurier reached a compromise with the provincial
government, whereby separate schools would not receive public funding but certain schools
received privileges to give religious instruction and to conduct classes in French. See G. Bale,
“Law, Politics and the Manitoba Schools Question: Supreme Court and Privy Council” (1985)
63 Can. Bar Rev. 461.
43See ibid.
44This case was noted by Chief Justice Freedman in the course of delivering his judgment
in Forest v. A.G. Manitoba (1979), 98 D.L.R. (3d) 405 at 422, [1979] 4 W.W.R. 229, 47 C.C.C.
(2d) 405 (Man. C.A.) [hereinafter cited to D.L.R.], aff’d by the S.C.C., infra, note 50.
1986]
NOTES
was ultra vires the Legislature of Manitoba and the County Court Judge, in
a judgment delivered on 14 December 1976, agreed with him.45
The Attorney General of Manitoba then declared that although he did
not accept this ruling, he did not intend to appeal it “at this time”. Waiving
his earlier objection that the appeal documents were in French, he was now
prepared to proceed on the merits of the appeal of the parking conviction.4 6
Forest’s aim, however, was to litigate the language question. After unsuc-
cessful attempts to do SO, 4 7 he applied to the Court of Queen’s Bench for a
declaration that the Official LanguageAct was ultra vires. The Court rejected
his application on the ground that he lacked standing, having already obtained
the relief he sought in the County Court.48 Forest then appealed to the Court
of Appeal, which not only declared it unfair to deny Forest standing in the
Court of Queen’s Bench since, in effect, it penalized him for winning in the
County Court, but also found the Official Language Act ultra vires the Leg-
islature of Manitoba because it was in conffict with section 23 of the Man-
itoba Act, 1870.49 The Attorney General appealed unsuccessfully to the Supreme
Court of Canada, which upheld the decision of the Court of Appeal. 50 Thus,
it was clear that section 23 of the Manitoba Act was not part of the “Con-
stitution of the province” as that expression was used in subsection 92(1)
of the Constitution Act, 1867.
The Blaikie case, which originated in Quebec and concerned the status
of the English language in the Legislature and Courts of that province, was
decided by the Supreme Court of Canada on the same day and in the same
way as Forest. Dealing at greater length than did the Forest case with the
problem of defining “Constitution of the province”, the Court observed
that:
[Section] 133 [of the Constitution Act, 1867] is not part of the Constitution of
the Province within s. 92(1) but is rather part of the Constitution of Canada
and of Quebec in an indivisible sense, giving official status to French and
English in the Parliament and in the Courts of Canada as well as in the Leg-
islature and Courts of Quebec.5′
45R. v. Forest (1976), 74 D.L.R. (3d) 704, [1977] 1 W.W.R. 363, 34 C.C.C. (2d) 108.
46The various steps taken in the Forest case were outlined by Chief Justice Freedman in
Forest v. A.G. Manitoba, supra, note 44 at 409-11.
47See ibid.
48Forest v. A.G. Manitoba (1978), 90 D.L.R. (3d) 230, [1978] 5 W.W.R. 721 (Man. Q.B.).
49Forest, supra, note 44.
50A.G. Manitoba v. Forest (1979), [1979] 2 S.C.R. 1032, 101 D.L.R. (3d) 385, 30 N.R. 213,
51A.G. Quebec v. Blaikie (1979), [1979] 2 S.C.R. 1016 at 1025, 101 D.L.R. (3d) 394, 30 N.R.
[1980] 2 W.W.R. 758, 2 Man. R. (2d) 109, 49 C.C.C. (2d) 353.
225, 49 C.C.C. (2d) 359.
REVUE DE DROIT DE McGILL
[Vol. 31
This statement can be applied with appropriate modifications to section 23
of the Manitoba Act.
The decisions of the Supreme Court of Canada in the Blaikie and Forest
cases have been given constitutional endorsement by the Constitution Act,
1982. It repealed subsection 92(1) of the 1867 Act, which allowed a pro-
vincial legislature to amend “the Constitution of the province, except as
regards the Office of the Lieutenant Governor”, 52 replacing it with a new
provision (section 45 of the Constitution Act, 1982) which reads as follows:
“Subject to section 41, the legislature of each province may exclusively make
laws amending the constitution of the province.” Section 41 deals with
amendments to the Constitution of Canada requiring unanimous consent
(that is, authorization by resolutions) of federal and all provincial legisla-
tures. Under paragraph 41(a) an amendment relating to “the office of the
Queen, the Governor General and the Lieutenant Governor of a province”
requires such consent. 53 So too, under paragraph 41(c), does an amendment
relating to “the use of the English or the French language”, but this provision
is subject to section 43, which deals with amendments to the Constitution
of Canada relating to any provision that applies to one or more, but not to
all, provinces. Thus although the expression “Constitution of the province”
is used without definition in section 45 of the Constitution Act, 1982, just
as it was in subsection 92(1) of the Constitution Act, 1867, it is now clear
that a provincial legislature cannot unilaterally amend a constitutional pro-
vision relating to the use of the English or the French language within the
province. Such an amendment can be made by proclamation issued by the
Governor General under the Great Seal of Canada when authorized by
resolutions of the Senate, the House of Commons, and the Legislative Assembly
of each province to which the amendment applies. 54 Thus, an amendment
to section 23 of the Manitoba Act requires federal approval as well as that
of the Legislature of Manitoba.
Notwithstanding the Supreme Court decisions in Forest and Blaikie,
the endorsement of these decisions in the Constitution Act, 1982 and sub-
sequent developments in the Manitoba language controversy,55 there is still
no explicit definition of “Constitution of the province” comparable to that
provided for “Constitution of Canada” in subsection 52(2) of the Consti-
tution Act, 1982. This will continue to be a fertile source of controversy:
the Canadian federal system comprises a bewildering and overlapping num-
ber of constitutional forms – a federal constitution, provincial constitutions
52Constitution Act, 1982, supra, note 20, s. 53(1) and Item 1(4) of Schedule.
53It would have been better to use “or” instead of “and” in this paragraph. Surely the
amendment does not have to relate to all three offices to require unanimous consent.
54Constitution Act, 1982, supra, note 20, s. 43. Under circumstances outlined in s. 47, a
constitutional amendment can be made without Senate approval.
55See Reference Re Manitoba Language Rights, supra, note 8.
1986]
NOTES
479
and provisions such as section 23 of the Manitoba Act and section 133 of
the Constitution Act, 1867, which are part of the constitutions of Canada
and of a province. It is precisely owing to this unique structure that defining
expressions such as “Constitution of the province” becomes crucial. This
short discussion has demonstrated that the ambiguity inherent in the term
“Constitution of the province” has been at the root of major constitutional
problems in Canadian history and that, as long as such ambiguities remain
unresolved, they are likely to be at the crux of future constitutional controversy.
