Language Guarantees and the Power to Amend
the Canadian Constitution
Armand L. C. de Mestral and William Fraiberg *
Introduction
An official language may be defined as one ordained by law to
be used in the public institutions of a state; more particularly in
its legislature and laws, its courts, its public administration and its
public schools.1 In Canada, while language rights have historically
been an issue of controversy, only a partial provision for official
languages as above defined is to be found in the basic constitutional
Acts.
The British North America Act, in sec. 133,2 gives limited re-
cognition to both Engish and French in the courts, laws, and legis-
latures of Canada and Quebec. With the possible exception of Quebec,
the Provinces would appear to have virtually unlimited freedom to
legislate with respect to language in all spheres of public activity
within their jurisdiction. English is the “official” language of Mani-
toba by statute 3 and is the language of the courts of Ontario.4 While
Alberta and Saskatchewan have regu’ated the language of their
schools,5 they have not done so with respect to their courts and
Of the Editorial Board, McGill Law Journal; lately third law students.
‘The distinction between an official language and that used in private dis-
course is clearly drawn by the Belgian Constitution: Art. 23. “The use of the
language spoken in Belgium is optional. This matter may be regulated only by
law and only for acts of public authority and for judicial proceedings.” Peaslee,
A. J., Constitutions of Nations, Concord, Rumford Press, 1950, p. 129.
2 The British North America Act, 1867, Sec. 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.”
i
3 An Act to provide that the English Language shall be the official language
the Province of Manitoba, S.M. 1890, c. 14; R.S.M. 1954, c. 187.
4 The Judicature Act, R.S.O. 1960, c. 197, s. 124.
6 By virtue of The Alberta Act, S.C. 1905, c. 3, s. 17; The Saskatchewan Act,
S.C. c. 42, s. 17.
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LANGUAGE GUARANTEES
legislatures. 6 There is no statutory regulation of the language of
public institutions in British Columbia and the four Atlantic Prov-
inces. However, English is the official language by custom and usage,
and it is even possible to make an historical case that English is the
official language of the courts by virtue of the Commissions and
Instructions to the first colonial Governors. 7 A number of Provinces
have seen fit to legislate with respect to the language of instruction
in public schools and their absolute right to do so was upheld by
the Privy Council.8
6 The result of this failure to legislate is some ambiguity as to the status
jf French. Section 16 of both the Alberta and Saskatchewan Acts provided that
Northwest Territories legislation in force immediately before Sept. 1, 1905, was
to continue until repealed by Parliament or the respectiv& Legislatures. An Act
to Amend the Northwest Territories Act, S.C. 1891, c. 22, s. 18 provided that
English or French could be used in the Debates of the Territorial Assembly and
the Courts of the Territory, and the Territorial Ordinances were to be published
in both languages, but also provided that the Assembly could regulate the manner
of recording and publishing its proceedings proprio motu after the next election.
Any such change was to be embodied in a Proclamation made and published by
the Lieutenant-Governor before having full force and effect. On January 19,
1892, a Resolution was passed making English the sole language of record in
the Assembly (Journal of the Northwest Territories, 1891-2, p. 110). The authors
have been unable to find any record of the publication or even preparation of
the necessary Proclamation. They are consequently of the opinion that the Reso-
lution is of no effect. The Northwest Territories Act, R.S.C. 1886, c. 50, s. 110,
as amended by the 1891 Statute, was in force on the date of the establishment
of both Provinces. The Act to Amend Schedule A to the Revised Statutes 1906,
S.C. 1907 c. 44, s. 1, expressly declared that the Act 1891 S.C. c. 22 was not
repealed as regards Alberta and Saskatchewan. Saskatchewan and Alberta have
never repealed the latter Act.
7 English was the language of the political institutions brought from Britain.
The language of practice and pleading in the Courts of England was declared
to be English by the Statute 1731, 4 Geo. II c. 26. The legal basis of English
in Nova Scotia is the Commission and Instructions to Governor Cornwallis of
May 6, 1749; similarly, in Prince Edward Island the Commission and Instructions
of August 4, 1769, and July 27, 1769 respectively; in New Brunswick, the Com-
mission and Instructions to Governor Carleton of August 16, 1784; in British
Columbia the Commission and Instructions to Governor Douglas of September 2,
1858; and in Newfoundland to Governor Osborne in 1729. The effect of these
Commissions was to introduce the English system of laws and judicature into
the colonies, and thus indirectly English was made the official language of the
courts. See Read, G. E. “The Early Provincial Constitutions”, (1948) 26 Can.
Bar Rev. 625.
s Ottawa Separate School Trustees v. Mackell [1917] A.C. 62. See also:
McDonald v. Lancaster Separate School Trustees (1916) 35 O.L.R. 614; Re
Ottawa Separate Schools (1917) 41 O.L.R. 259; Ottawa Roman Catholic Separate
School Trustees v. Quebec Bank [1920] A.C. 230; Ottawa Roman Catholic Separate
McGILL LAW JOURNAL
[Vol. 12
In this note the authors will attempt to define the nature and
extent of existing Constitutional language guarantees and the power
School Trustees V. Ottawa Corporation et al. [1917] A.C. 76; Roman Catholic
Separate School Trustees for Tiny v. Rex [1928] A.C. 363.
Newfoundland has no statute regulating the language of instruction.
Prince Edward Island has never legislated with respect to the language of
instruction, but laws have been passed regulating the linguistic competence of
teachers: See An Act to amend and consolidate the several Acts relating to
Education, R.S.P.E.I. 1861 c. 36, s. 36; An Act to Amend and consolidated the
several Acts relating to Education, S.P.E.I. 1868 c. 6, s. 72.
New Brunswick has never legislated with respect to the language of instruction,
but the cases of Maher v. The Town of Portland (reported in (1874) Wheeler’s
Confederation Law of Canada, pp. 338, 367), and Ex Parte Renaud (1873) 14
N.B.R. 273, provided the model for the abolition of separate schools in Manitoba.
Nova Scotia. Since Confederation there has been no legislation permitting
instruction in the public schools of the Province in a language other than English.
But before Confederation Gaelic, French and German were specifically permitted.
See An Act to continue the Act for the Encouragement of Schools, S.N.S. 1845
c. 25, s. xxiv.
Quebec has never legislated with respect to the language of instruction in
Protestant and Catholic schools. This has been determined by the decision of the
competent Catholic and Protestant school authorities: particularly The Council
of Public Instruction, now the Superior Council of Education, school boards, and
lately the Department of Education.
Ontario has legislated with respect to the language of schools: see The Public
School Law, S.O. 1874 c. 28, ss. 61-2(b); The Public Schools Act, R.S.O. 1877
c. 204, s. 87-2 (b) ; The Public School Act, S.0. 1896 c. 70, s. 76 (2) ; Ibid., R.S.O.
1897 c. 292, s. 76(2), s. 79(2), s. 82(5); Ibid., S.O. 1901 c. 39, s. 85(5); An
Act to amend the Public Schools Act, S.O. 1906 c. 53, s. 46 (6) ; An Act respecting
the qualifications of certain teachers, S.0. 1907 c. 52, s. 9. The most sweeping
attempt at the regulation of the language of instruction was in the Ministerial
Order of 1912, Regulation 17, and modified by Circular 46, of 1928.
Manitoba has also legislated with respect to the language of instruction in
public schools: See An Act to amend the “Schools Act”, S.M. 1897 c. 26, s. 10;
The Public Schools Act, R.S.M. 1913 c. 165, s. 258; An Act to further amend
the “Public Schools Act”, S.M. 1916 c. 88; The Public Schools Act, S.M. 1952
c. 50, s. 240.
Saskatchewan has also passed such legislation: See The Schools Act, S.S. 1915
23, s. 177; An Act to amend the School Act, S.S. 1918-19 c. 48; The School Act,
R.S.S. 1920 c. 110, s. 177; Ibid., R.S.S. 1930 c. 131; An Act to amend the School
Act, (No 2) S.S. 1930, c. 46, s. 7, s. 9; An Act to amend the School Act, S.S. 1931
c. 52, s. 14, s. 23(c). This latter section, with its overtones of vigilante action, is
surely one of the most unfortunate attempts at enforced anglicisation ever
attempted by a Province. See McCarthy V. The City of Regina [1918] A.C. 911.
Alberta has also passed similar legislation: See The School Act, R.S.A. 1927
c. 51, s. 146; R.S.A. 1942 c. 175, s. 154; R.S.A. 1953 c. 297, ss. 385:387.
British Columbia has only legislated with respect to the language of instruction
once: See An Act to amend the “Public Schools Act”, S.B.C. 1940 c. 45, s. 3.
No. 4]
LANGUAGE GUARANTEES
of either Parliament or the Provincial Legislatures to amend them.
The British North America Act 1867 and Amendments do not ex-
pressly recognize language as a separate head of jurisdiction; nor
have the courts held it to be an over-riding substantive right beyond
the narrow ambit of sec. 133. The power of Parliament or the
Provinces to legislate with respect to language is, it would seem,
instead merely ancillary to subjects of legislative competence attrib-
uted by the B.N.A. Act.
The Nature and Extent of Present Language Guarantees
(i) Legislatures and Laws
Sec. 133 provides that either English or French may be used
in the Debates and shall be used in the Records and Journals of
the Houses of Parliament and the Houses of the Legislature of
Quebec; the section further provides that the Acts of Parliament
and of the Quebec Legislature shall be printed and published in both
languages.9 However, this provision does not appear to extend to
subordinate legislation.
(ii) Courts
The section stipulates that either English or French may be
used in all proceedings in any “Court of Canada” established under
the B.N.A. Act and in any “Court of Quebec”.’ 0 This section covers
the Courts of Quebec at every level, but outside Quebec covers only
Federal courts.”‘ Federal administrative tribunals appear to be beyond
the ambit of this requirement. It could be argued that Provincial
courts established under section 92(14) but designated as the courts
of exclusive competence over matters of Federal jurisdiction 12 are
ipso facto bilingual. However, the better view would seem to demand
a negative reply since they are not “Courts of Canada established”
11 Quaere: Does “printing and publication” include enactment ? It can be argued
contra that an “Act” which is to be published implies one which has been passed.
Otherwise publication would be of a tranlation, not of the Act. See footnote
43 infra.
10 However, the right is more formal than substantive, since civil litigants are
obliged to pay for the costs of interpretation into the other language.
11 Namely, the Supreme Court; Exchequer Court; Admiralty Court; Prize
Court; Military Tribunals; and Courts of the Yukon and Northwest Territories.
12 Such as courts of criminal jurisdiction: Criminal Code, secs. 2(10), 2(38);
The Bankruptcy Court: The Bankruptcy Act, R.S.C. 1952 c. 14, s. 140; The
Citizenship Court: The Canadian Citizenship Act, R.S.C. 1952 c. 33, s. 34(2),
s. 2(h).
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[Vol. 12
under the B.N.A. Act. Thus the civil procedure in force in a Province
applies unless Parliament legislates otherwise.
(iii) Public Administration
There is no requirement under sec. 133 that either the Federal
in any specific
Government or Quebec should provide ‘services
language.
(iv) Schools
There is no provision in the Constitution of Canada requiring
education to be provided to any group in either French or English,
or indeed, in any other language. 13
Jurisdiction over Language – An Ancillary Power
Jurisdiction over language apparently belongs neither exclusively
to the Dominion nor to the Provinces. Rather, the power of the
Dominion and of the Provinces to legislate with respect to language
seems ancillary to heads of legislative jurisdiction conferred by the
B.N.A. Act.
(i) Federal Jurisdiction
In areas not within exclusive Provincial jurisdiction, and not
protected-by sec. 133, Parliament may regulate the use of language
in any manner it deems appropriate. Illustrations of this power are
the provisions relating to mixed juries in criminal cases, 14 and the
right under various statutes to an interpreter.’5’
The Canadian Bill of Rights provides that no Act of the Parlia-
ment of Canada shall be construed or applied so as to:
“deprive a person of the right of the assistance of an interpreter in any
proceedings in which he is involved or in which he is a party or witness
before a Court, Commission, Board or other Tribunal, if he does not under-
stand or speak the language in which such proceedings are conducted.”‘ 61
‘3 Quaerc: Does the power of remedial legislation extend to language as well
as to denominational matters in the schools?
14 Criminal Code s. 535, (Quebec), s. 536 (Manitoba), and ss. 544, 579, and 580.
15Inter alia: The Canada Election Act, S.C. 1960 c. 39, s. 45(11); The Canada
Temperance Act, R.S.C. 1952 c. 30, s. 45; Visiting Forces (N.A.T.O.) Act, R.S.C.
1952 c. 284 s. 3 (Referring to Art. VIII(9) of the Treaty).
16 S.C. 1960 c. 44, s. 2 (g).
No. 4]
LANGUAGE GUARANTEES
However this provision applies only to matters within Federal
legislative competence.’ 7 A number of Federal statutes provide that
the language of public notices must be English or French or both.’8
A recent amendment to the Canada Corporations Act’ 9 permits
bilingual corporate names.
Insofar as procedure before the Courts in matters of Federal
jurisdiction is concerned, Parliament’s competence to regulate pro-
ceedings necessarily extends to the languages which may be used
before those Courts.2 1 A clear illustration of this power is to be
found in the Canadian Citizenship Act 22 which provides that an
applicant for citizenship must satisfy the Court of the adequacy
of his knowledge of either French or English, and by implication
permits the application to be made in either language to any Citizen-
ship Court in Canada, 23 even before those of Ontario and Manitoba.
Similarly, Parliament may regulate the languages to be used before
any Provincial court designated to act in a sphere of Federal legis-
lative competence, such as the Bankruptcy Court.
(ii) Provincial Jurisdiction
The ancillary doctrine of legislative competence over language
applies equally to all areas of Provincial jurisdiction, restricted only
by sec. 133. Indeed the supreme example of the ancillary character
of language under the Constitution of Canada is Education, desig-
nated as a matter of exclusive Provincial competence by the B.N.A.
Act, sec. 93. Whi:e the guarantees of the rights to separate denomi-
national schools granted by sec. 93 24 have been upheld by the courts,
17 Ibid., s. 5 (3).
18 Inter alia: The Civil Service Act, S.C. 1960-1 c. 57, s. 39; The Canada Election
Act, S.C. 1960 c. 39, s. 25(2).
19 S.C. 1964-5 c. 52, s. 50.
20 See A.-G. of Alberta and Winstanley v. Atlas Lumber Co. [1941] S.C.R. 87,
where Rinfret J. held that:
it has long been decided that with respect to matters coming within the
“….
enumerated heads of section 91, the Parliament of Canada may give jurisdic-
tion to provincial Courts and regulate proceedings in such Courts to the
fullest extent.”
21 This is of course to be qualified by the doctrine of the “unoccupied field”.
Where parliament has not regulated procedure, Provincial rules apply. Cf. Laskin,
B., Canadian Constitutional Law, (Toronto, 1960), p. 811.
22R.S.C. 1952 c. 33.
23 Ibid., s. 10 (1) (e).
24 British North America Act, 1867, s. 93. The right was also guaranteed by
The Manitoba Act, S.C. 1870 c. 3, s. 22; The Saskatchewan Act, S.C. 1905 c. 42,
s. 17; The Alberta Act, S.C. 1905 c. 3, s. 17.
McGILL LAW JOURNAL
[Vol. 12
the same courts have consistently held that the Provincial power
to regulate the language of schools was absolute.2 6 Like Parliament,
the Provinces have seen fit to regulate language in a number of
other areas within their competence. 25
(iii) Limitations on Federal and Provincial Power
While it might seem that the power of Parliament and the Pro-
vincial legislatures to regulate language is unlimited within their
respective spheres, the authors feel that the basic right of freedom
of expression would set bounds to this power. Clearly a provincial
law requiring that newspapers be published in a specific language
would be a serious infringement of the freedom of the press. 2 T
Similarly it would appear that a provincial law requiring that
all commercial advertising be in a specific language only would
infringe the liberty of expression, since in our opinion, such com-
munications are an extension of freedom of speech.2 s
The most difficult question relates to the power of Parliament
or the Provinces to regulate the language of the official texts of
25 Trustees of the Roman Catholic Separate Schools v. Mackell [1917] A.C. 62,
Lord Buckmaster at p. 69: “Further, the class of persons to whom the right or
privilege is reserved must, in their Lordship’s opinion be a class of persons
determined according to religious belief and not according to language.” See also
The Toronto Corporation v. The Roman Catholic Separate School Trustees [1926]
A.C. 81. As A. Berriedale Keith has remarked, “The essential result of the litiga-
tion is that there is no privilege whatever in Canada on language grounds in
matters of education.” Responsible Government in the Dominions, 2nd. ed. (O.U.P.,
1928), vol. 1. p. 540-1.
20 See inter alia: Cities and Towns Act, R.S.Q. 1964 c. 193, s. 362; The Quebec
Municipal Code, arts. 127-131a; Code of Civil Procedure, arts. 333, 334, 338, 339,
340, 351, 352 (New Code in force Sept. 1, 1966) ; The Companies Act, (Manitoba)
S.M. 1964 c. 3, s. 15; The Quebec Companies Act, R.S.Q. 1964 c. 271, s. 31; The
Co-operative Associations Act, R.S.N.B. 1952 c. 40, s. 11; The Civil Code (Quebec)
arts. 1571a, 1571d, 1671a; The Gas, Water and Electricity Companies Act, R.S.Q.
1964 c. 285, s. 4; Unclaimed Goods Sales Act, R.S.Q. 1964 c. 316, ss. 7, 9.
27 According to the obiter dicta in Switzman v. Elbling et le Procureur gndral
de la province de Qudbec [1957] S.C.R. 285, of Abbott, J., at p. 328, neither the
Federal nor the Provincial Legislature has the power to extinguish this funda-
mental right. The decision of the majority would appear to establish a sphere of
basic civil liberty which the provincial legislatures, at least, cannot infringe. For
a general discussion of the freedom of the press, see: Marc Lalonde, “Les jour-
naux et la loi au Canada”, Cit6 Libre, avril-mai 1966, VXI no. 86.
28 This was apparently not the opinion of the former Premier of Quebec, the
Hon. Jean Lesage, when he stated in an electoral speech that advertisers would
soon be required to give “priority” to the French language in their advertisements
in Quebec. See La Presse, mardi le 24 mai 1966, “Le frangais deviendra la langue
principale de travail au Qu6bec”.
No. 4]
LANGUAGE GUARANTEES
contracts. A Province can certainly require that certain contracts
be drawn up in several languages for public convenience. 29 How-
ever, the authors believe that a Provincial law requiring that the
authentic texts of all contracts drawn up in the Province be in a
specific language only would also be an infringement of freedom
of speech, and hence apparently ultra vires. The right to extend is
undoubted, but any attempt to restrict the languages of authentic
texts of contracts would apparently be ultra vires the Provincial
Legislatures, 0 and, in the view of Abbott, J., ultra vires Parlia-
ment as well.Oao
The Power to Amend Constitutional Language Guarantees
(i) The Federal Power
By the terms of the British North America Act, 1949, Parlia-
ment has the right to amend the “Constitution of Canada” except
“as regards the use of the English and French Language.” 3′ 1 Thus
Parliament cannot abrogate the limited rights stipulated in sec. 133.
From a literal reading of sec. 91 (1),
it does not appear that Parlia-
ment can add to these rights, but as has been stated, Parliament
is at liberty to legislate with respect to all other heads of juris-
diction accorded to it by sec. 91.32 Furthermore, whether or not sec.
23 of the Manitoba Act 33 was ever validly repealed by the Manitoba
29 See art. 1682c of the Civil Code, which requires that all “passenger tickets,
baggage checks, way bills, bills of lading”, etc., be in both French and English.
30 Mr. Lesage also suggested that labour agreements would soon have to be in
both English and French with priority going to -the Fxench text in matters of
interpretation. See La Presse, mardi, le 24 mai 1966. The requirement of two
texts would clearly be intra vires, but the primacy accorded to one text of a
private agreement would not. (See Labour Code, R.S.Q. 1964 c. 141 s. 51).
30a See footnote 27 supra.
31 13 Geo. VI c. 81 (U.K.), s. 91(1). Prior to 1949 the Parliament of Canada
was also prevented from amending s. 133 in the absence of a constitutional
amendment formula. Only the Imperial Parliament could do so.
32 The curious corollary of this situation being that such provisions as the
Canada Elections Act and the Canadian Citizenship Act must not be deemed part
of the Constitution if their language provisions are to be freely amendable.
33 S.C. 1870 c. 3, s. 23: “Either the English or the French language may be
used by any person in the debates of the Houses of the Legislature, and both those
languages shall be used in the respective Records and Journals of those Houses;
and either of those languages may be used by any person, or in any Pleading or
Process, in or issuing from any Court of Canada established under the 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.”
McGILL LAW JOURNAL
[Vol. 12
Legislature, 34 Parliament certainly did not have, 35 and possibly does
not have 36 power to do so.
An interesting question is whether a general Act of Parliament,
providing that Engish and French shall be the “official” languages
of Canada, and their use permissible in all areas of Federal com-
petence, would be held ultra vires Parliament, falling under the
prohibition of sec. 91(1). Due to the generality of such a law the
Courts might possibly so rule. However, it would probably survive
as does the Canadian Bill of Rights,3 7 also limited to areas of Federal
competence. 38
(ii) The Provincial Power
The burning issue in this respect is whether the Quebec Legis-
lature has power to repeal sec. 13t insofar as it applies to that
Province. This question is not without historical precedent. In 1890
the Manitoba Legislature enacted the following provision designed
to take the place of sec. 23 of the Manitoba Act, except as regards
debates in the Assembly:
“1. Any statute or law to the contrary notwithstanding, the English language
only shall be used in the records and journals of the House of Assembly
for the Province of Manitoba, and in any pleadings or process in or issuing
from any court in the Province of Manitoba. The Acts of the Legislature of
the Province of Manitoba need only be printed and published in the English
language.
2. This Act shall only apply so far as this Legislature has jurisdiction so
to enact, and shall come into force on the day it is assented to.” 30
By sec. 5 of the B.N.A. Act, 1871, the Manitoba Act (regarding
whose validity doubts had arisen) had been declared by the Imperial
Parliament to be “valid and effectual for all purposes whatsoever”,
and placed beyond the legislative competence of the Parliament of
Canada, except in compliance with sec. 3 requiring provincial con-
sent. It can therefore be strongly argued that sec. 23 of the Manitoba
Act was elevated to a position equivalent to sec. 133.40 Therefore
34 The Official Language Act, S.M. 1890 c. 14.
35 B.N.A. Act, 1871, s. 6.
36B.N.A. (No. 2) Act, 1949; s. 91(1) B.N.A. Act.
37 1960 S.C. c. 44.
38 Application of so general a law in the courts might, however, be extremely
difficult. Would a French-Canadian bankrupt in Manitoba be cut off in mid-
sentence as he turned from bankruptcy matters to mechanics liens?
39 S.M. 1890 c. 14, ss. 1, 2.
40 Though the technical difference between the two provisions is that s. 133
was originally enacted by the Imperial Parliament, while s. 23 was originally
enacted by the Parliament of Canada.
No. 4],
LANGUAGE GUARANTEES
either the Imperial Parliament alone or both the Imperial Parlia-
ment and the Manitoba Legislature had power to amend sec. 23. The
Manitoba Legislature obviously acted on the latter assumption, though
with evident hesitation.4 1 It must be presumed that the constitutional
basis for the abolition of French as an official language of the Pro-
vince was the power to amend the Provincial Constitution, conferred
by section 92(1) B.N.A. Act for the Legislative Assembly, and the
power conferred by section 92(14) for the Courts.42
Applying the Manitoba precedent to Quebec, it may be argued
that it is within the power of the Quebec Legislature to abolish
English as the laiiguage of debate and record in the Legislature,
of the laws,4 3 and of the proceedings before the courts. Even if one
41 See the Official Language Act, S.M. 1890 c. 14, s. 2.
42 Both sections 92(1) and 92(14) were made applicable to Manitoba by The
Manitoba Act, S.C. 1970 c. J3, s. 2.
43 It is open to question whether the courts should give effect to a Federal or
Quebec statute enacted in one language only. A strict reading of s. 133 seems to
imply that statutes of Parliament and Quebec need only be “printed and published”
in the English and French language, but not enacted in both languages. The
contrary argument would be that the word “Acts” implies enactment of both
texts. The latter argument still begs the question of the language of enactment.
The historical argument is stronger in that “printing and publication” of statutes
has always been interpreted in practice as implying enactment. Thus Parliament
and Quebec have always enacted both English and French texts since 1867.
When Manitoba abolished the use of French in its laws and legislature it was
simply stated that laws “need only be printed and published in the English
language.” (S.M. 1890 c. 14, s. 1). It is interesting to note that the Acts of the
Parliament of Canada were passed and approved in both English and French
(The authors, after research in the Archives of
during the years 1849-1867.
Parliament, make this assertion, despite the statement of J. D.” Honsburger, in
“Bilingualism in Canadian Statutes” (1965) 43 Can. Bar Rev. 319.) The implica-
tion is that Provinces could presently increase the number of official languages,
and that the texts approved would have the same validity as the English text.
The second question is whether a statute of Parliament or Quebec requiring
enactment in one language only but allowing that the statute should be “printed
and published in the English and French languages” would be ultra vires. Such
an act would clearly be ultra vires Parliament, under s. 91(1) of the B.N.A.
Act. However, it might well be intra vires Quebec, again under a strict reading of
s. 133. Contra, the arguments given above with respect to constitutional conven-
tion and the necessary intendment of s. 133 may also be used here. The strongest
argument, according to one of the authors, would be that such an Act would be
an amendment affecting the office of Lieutenant-Governor, since this would
effectively remove from the Lieutenant-Governor the power to perform a function
which he has traditionally exercised.
The third question concerns the validity of section 1 of The Medical Act,
R.S.Q. 1964 c. 249, and The Dental Act, R.S.Q. 1964 c. 253, both of which provide
there be any difference between the French and English versions of
that: “If
McGILL LAW JOURNAL
[Vol. 12
were to argue that sec. 133 is fundamentally different from sec. 23
of the Manitoba Act, since it was enacted by the Imperial Parlia-
ment, while the latter was not, this distinction would, it is sub-
mitted, be immaterial to any possible abolition of English as an
official language in Quebec. This assertion is supported by a close
reading of the B.N.A. Act.
(a) Legislature and Laws
The power to amend the provincial constitution, except as re-
gards the office of Lieutenant-Governor, exists “notwithstanding
anything in this act”. No such non obstante clause is to be found
in sec. 133 to except it from the plenary amending power conferred
on the Province by sec. 92(1).
As Keith has said,
“The provinces, as has been seen, are more fortunate in that, save as regards
the office of Lieutenant-Governor, they can freely amend the constitution
of the Legislatures and the Executive Governments; the Act of 1867 im-
poses, it is true, a restriction on the alteration of what were then English-
speaking constituencies in the province of Quebec, unless the second and
third readings of any Bill to this effect are passed by a majority of their
representatives. The districts have long since ceased in the main to be
British as opposed to French, and the provision itself might perhaps be
abolished under the general power of constitutional change given in sec-
tion 92 (1).”45
Manitoba possessed a constitutional amending power neither more
nor less complete than that of Quebec, 40 and similarly, sec. 23 of the
Manitoba Act was unprotected by a non obstante clause. Therefore
it can be argued that sec. 92(1) over-rides sec. 133, just as it may
have over-ridden sec. 23, with respect to the Legislature and laws
of the Province of Manitoba.
The contrary argument is based on a restrictive definition of
the term “Constitution of the Province” insofar as it applies to the
Province of Quebec. The jurisprudence on the scope of this term
is very limited, and in only two cases was an attempt made at a
this Act, the French version shall prevail.” (A similar provision was passed in
1937 by the Quebec Legislature declaring the French version to have primacy
in the event of divergences between the French and English texts of all Quebec
statutes. S.Q. 1937 c. 13; repealed by S.Q. 1938 c. 22). All the arguments respecting
s. 133 in Quebec (vide supra) apply here. The authors must regretfully conclude
that these sections must be held valid by a strict construction of s. 133.
44 Emphasis added.
45 Keith, A. B., op. cit., p. 5.88.
46 See footnote 42 supra.
No. 4]
LANGUAGE GUARANTEES
specific definition. The clearest statement is that of Beck, J. A. in
the case of R. v. Ulmer:
“Thus it seems to me reasonably clear that the power to change the constitu-
tion can only be exercised in relation to those matters which are treated of
in Art. (sic) V, and captioned ‘Provincial Constitutions’.” 48
Following this line of reasoning it may be argued that sec. 133
is not comprehended within the Provincial Constitution, as it was
not included under the rubric of Part V of the B.N.A. Act.
The term “Constitution of the Province” may be reduced still
further, for sec. 92(14) would appear to except the judicial func-
tion from the “Constitution”, and sec. 92(1) expressly excepts the
power to amend the executive function, as represented by the Lieu-
tenant-Governor.4 9 One may therefore conclude that the amendable
Constitution of Quebec is restricted to the constitution of its Legis-
lature, as provided for in secs. 71-87, of the B.N.A. Act.
However, by adopting a strict position with reference to Manitoba,
it might be argued that the entire Manitoba Act, with the exception
of certain sections,50 but including sec. 23, forms part of the Consti-
tution of Manitoba, amendable under sec. 92(1).
In sum, protection of these language rights from interference
by Provincial Legislatures turns upon the possibility of establishing
that sec. 133 is not within the ambit of sec. 92(1).
(b) The Courts
The same argument applies to the courts, substituting sec. 92 (14)
for sec. 92(1). Thus sec. 92(14) might be the basis of the abolition
of English in the courts of Quebec as the authors presume that it
was in Manitoba for that of French.
However, it might be argued contra that the general legislative
authority granted to a province to regulate the administration of
justice in the province is subject to the specific provision of sec. 133.
Unlike sec. 92(1), sec. 92(14) lacks a non obstante clause, and by
47EX parte Dansereau (1875) 19 L.C.J. 210; Fielding v. Thomas [1897] A.C.
600; Cunningham v. Tomey Homma [1903] A.C. 151; In re Initiative and Referen-
dum Act [1919] A.C. 935; R. v. Ulmer (1925) 1 W.W.R. 1; R. v. Clark (1943)
2 D.L.R. 554, [1944] S.C.R. 69.
48 (1925) 1 W.W.R. 1, at p. 25. See also the remarks of Stuart, J.A., at pp.
11-14. In the same sense see the dissenting judgment of Ramsay, J. A., in EX
parte Dansereau (1875) 19 L.C.J. 210, at p. 227.
49 See the notes of Stuart, J. A., R. v. Ulmer (1925) W.W.R. 1, at p. 14.
50 1, 3, 4, 5, 24, 25, 27, and 28-35.
McGILL LAW JOURNAL
[Vol. 12
Ehe rule of statutory interpretation generalia specialibus non dero-
gant the power to amend sec. 133 with respect to the language of
the courts is removed from the competence of the Legislature of
Quebec. By the same token, if this argument is valid for Quebec,
the Official Language Act of Manitoba,51 is ultra vires in its applica-
cation to the courts of that Province. It is surprising that the Official
Language Act has not been challenged, to date, on these grounds. 2
(c) The General purpose of section 133
Apart from the foregoing considerations based on literal con-
struction of the words of sec. 133, it can also be maintained that
the general intention of those responsible for the preparation of
sec. 133 53 was to entrench French language rights at the federal
level and English language rights in Quebec. 54 This intention was
succinctly stated by Cartier:
“The members of the Conference were desirous that it should not be in the
power of that [French majority in Lower Canada] majority to decree the
abolition of the use of the English language in the Local Legislature of
Lower Canada any more than it will be in the power of the Federal Legis-
lature to do so with respect to the French Language. I will also add that
the use of both languages will be secured in the Imperial Act to be based
55
on their resolution.2
Consequently, a Supreme Court, faced with a Quebec statute
similar to the Manitoba Official Language Act, might well be pre-
pared to base its decision on the broader policy concern, as was
51 S.M. 1890 c. 14; R.S.M. 1954 c. 197.
52 We know of only one case in the Province of Manitoba involving the validity
of the use of the French language before th courts of the Province. In Dumas v.
Baribault, June 1916, (as noted by G. M. Weir, in Separate School Law in the
Prairies Provinces, Toronto, 1917), an attempt was made to test the status of
French in judicial prbceedings by seeking a mandamus to force an inferior court
to accept a written plea in French. The Court of Queen’s Bench refused to issue
the order, and the matter was not pursued.
53 Notably Galt, Langevin, Dorion, Cartier and MacDonald; see Parliamentary
Debates on the Subject of the Confederation of the British North American
Provinces, 3rd Session, 8th Provincial Parliament of Canada, Quebec, 1865.
54 An argument based on statutory analysis, albeit weak, in support of this
view can be made from the fact that sec. 133 was included under Part IX, “Mis-
cellaneous Provisions,” rather than that entitled “Provincial Constitutions”.
55 Parliamentary Debates on the Subject of the Confederation of the British
North American, op. cit., p. 945.
No. 4]
LANGUAGE GUARANTEES
done by that Court in the Barrett and Logan cases, 56 rather than
to follow the restrictive approach of the Privy Council. As has been
noted above, a Supreme Court decision declaring the Manitoba
Official Language Act ultra vires, would close the door on the possi-
bility of Quebec ever enacting a similar statute.
Amendment Formulae
With respect to the problem of entrenched language rights, the
authors feel that three broad approaches
to a suitable means
of constitutional language protection under a new amendment for-
mula may be discerned: The first consists of a tightening of the
existing relevant sections in the B.N.A. Act, in the light of com-
ments made in this article. The second approach consists of the
promulgation of a more far-reaching amendment formula, which,
while permitting Parliament and the Provinces to make whatever
additions they wished to language rights, would make it extremely
difficult to abrogate these rights once they had been granted. The
third, and certainly most radical, approach lies in the creation of
language as a new and separate head of exclusive federal juris-
diction, at least with respect to certain defined public sectors, such
as the legislatures, laws, courts and schools.
(i) Strengthening of Existing Language Guarantees:
Any possible abolition of language rights in the courts and Legis-
lature of Quebec could be prevented by adding a non obstante clause
to sec. 133. For greater certainty this right should be covered by a
proviso in sec. (92)1 similar to that presently protecting the office
of Lieutenant-Governor. 57 In the light of the possible difficulties
which Parliament might encounter in extending language rights in
the Federal sphere, 5 an amendment of the phrase in sec. 91(1):
“The amendment from time to time of the Constitution of Canada
except, … as regards the use of the English or the French Lan-
56 It is well to remember that the Supreme Court took a liberal view on the
separate schools question and was reversed by the Privy Council. It would appear
that the subsequent conservatism of the Supreme Court on separate school and
language rights, viz. Ottawa Separate School Trustees v. Mackell [1917] A.C. 62,
(1915) 34 O.L.R. 335 was due to the Privy Council’s insistence on a strict statutory
construction of these rights during the Manitoba schools crisis.
57 This argument is predicated on the assumption that Canadian courts, often
ready to look to the letter rather than to the spirit of a legal question, would
be hesitant to declare the Manitoba Official Language Act ultra vires.
58 See p. 510 supra.
McGILL LAW JOURNAL
[Vol. 12
guage,” so as to make clear that it refers ‘only to the reduction
and not to the extension of such rights, would be appropriate. Sec.
133 should also be amended to read “enacted, printed and published
in the English and French languages”, for greater certainty.i0
Such an amended section would at present be amendable only
by the Imperial Parliament, and under a “repatriated” constitution
should be subject to the highest degree of entrenchment envisaged
by the governing amending procedure, such as the concurrence of
Parliament and the ten Provincial Legislatures required by the
Fulton-Favreau Formula.
The Fulton-Favreau Formula attempted to define an acceptable
amending procedure without changing the existing law. Insofar as
language guarantees are concerned, it is open to criticism for exactly
this reason.
Secondly, while it deals with language at the federal
level, 0
the Formula makes no new provision for provincial constitutional
amendment, even with reference to Quebec. Hence if all of sec. 133
is part of the constitution of Canada the “one plus ten” rule would
apply, but if not, it would seem that Quebec’s jurisdiction over
language is as complete as that of any other province, the words
of sec. 133 notwithstanding.
(ii) Protection of Extended Rights
The foregoing argument assumes only the tightening of existing
constitutional provisions. However, if Canadian public institutions
are truly to reflect the bilingual and bicultural character of Canada
today, it is possible that Parliament and certain Provinces will see
fit to extend language rights in the near future. What degree of
protection should these rights acquire ? The authors believe that
such new rights, once vested, should be so entrenched that once
Parliament or the provinces had conferred them, these rights could
not be repealed without the concurrence of Parliament and a desig-
nated number of Provinces. For language rights in the federal
sphere the concurrence of all the ten Provinces would not be un-
reasonable. On the other hand, this mechanism might well prove
unwieldy and politically unacceptable insofar as the Provinces are
concerned, if more than the concurrence of Parliament were required
to permit a provincial amendment. The potential weakness of such
a procedure is that it might deter Provinces from creating new
59 See footnote 43 supra.
60 Even here the above-mentioned problems of extending language rights in the
Federal sphere still remain.
No. 4]’
LANGUAGE GUARANTEES
minority language rights in view of the difficulty of their repeal.
This problem might be alleviated in the eyes of the provinces by
requiring only the concurrence of Parliament, as mentioned above.
The formula would be particularly adaptable to the creation of
bilingual districts by Parliament and the Provinces.
In the opinion of the authors sec. 133 of the B.N.A. Act could
also be submitted to the application of this procedure. Thus the
section could only be amended with respect of the federal sphere
by the concurring votes of all the Provinces, while Quebec would
be able to amend the section with the sole concurrence of Parlia-
ment.
(iii) Language as a Head of Exclusive Federal Jurisdiction
A grant of exclusive legislative power over language to Parlia-
ment would be a radical amendment to the present constitution.
The advantages are that language would be freed from its strait-
jacket of ancillary status and that Parliament could act with speed
and flexibility to create and protect linguistic rights throughout the
Dominion. Such power could be conferred on Parliament either by
the addition to sec. 91 of a new and separate head of jurisdiction,
or by the inclusion of this power in an entrenched Bill of Rights,
or even by a broad judicial construction of the power of Parliament
under sec. 91 of the B.N.A. Act to legislate for the “peace, order
and good government” of Canada. The disadvantages of this solu-
tion are that Parliament is arguably too remote to legislate effec-
tively for matters of essentially “local” concern; secondly, it would
put the protection of French language rights in the hands of an
English language majority; thirdly, and most important, a consti-
tutional enactment to imp’ement it would probably never receive
the approval of the provincial authorities.
Conclusions
The authors believe that the constitutional status of language
rights in Canada is far from clear. The protection of English lan-
guage rights is in serious doubt. Conversely, the reservations enter-
tained by the Manitoba legislators .when they enacted the Official
Language Act, may be amply justified. It would therefore seem that
the supposed entrenchment of Quebec English language rights re-
quires considerable tightening before it attains the same force as
the Federal guarantees of the French language. The possible lacunae
are surely contrary to the intent of the Fathers of Confederation.
McGILL LAW JOURNAL
[Vol. 12
In all other Provinces the provincial legislatures are apparently
free to regulate the language of public institutions within their juris-
diction. This would apply to any express repeal of French as an
official language in Alberta and Saskatchewan, assuming that the
argument for its continued status as an official language of those
Provinces is valid.61
With respect to the Northwest and the Yukon Territories, there
is no doubt that French is an official language of the courts, since
they are courts of Canada established under the authority of the
B.N.A. Act, within the meaning of sec. 133. By virtue of the latter
section, and sec. 91(1) of the B.N.A. (No. 2) Act, 1949, the Parlia-
ment of Canada cannot abolish the use of English or French in
these courts. However, could Parliament enact a law declaring
French to be an official language of the Territorial Councils ? If
such legislation were to be deemed an amendment of the Consti-
tution of Canada the answer would be in the negative in view of
sec. 91(1). On the other hand, if such legislation were to be deemed
ancillary to the general power to make laws for the peace, order and
good government of the Northwest and Yukon Territories (2 such
legislation would be intra vires the Federal Parliament.”3
The choice of an acceptable amendment formula is a supremely
political decision. Insofar as language guarantees are concerned any
amendment formula would have to combine a judicious mixture of
rigidity and flexibility due to the population shifts which are bound
to occur in Canada. Clearly the balance of federal and provincial
legislative authority designated by the Constitution must be main-
01 See footnote 6 supra.
62 Federal jurisdiction over the Territories is derived from this general power,
in the absence of any specific head of jurisdiction.
63 In any case, French may still be an official language of the Territorial Coun-
cils. The Yukon Territory Act, S.C. 1898 c. 6 provided
in secs. 3-5 that the
Territory was to be governed by a Commissioner and Council, appointed by the
Governor-General. Sec. 6 provided that the Commissioner-in-Council was to have
the same power to make ordinances as possessed before the passage of the Act
by the Lieutenant-Govenor of the Northwest Territories acting by and with
the advice and consent of the Territorial Assembly. By sec. 9 the existing laws
of the Northwest Territories were to remain in force until repealed or altered
by either the Commissioner-in-Council or Parliament. A similar form of govern-
ment was established in the Territories by the Northwest Territories Amendment
Act, S.C. 1905 c. 27, and sec. 6 provided that the Commissioner-in-Council was
to have the same legislative power as that previously exercised by the Territorial
Assembly. French may still have been an official language of the Territorial
Assembly at the time of the passage of both these Acts. Hence it may be argued
that the status of French has never been altered in the Yukon and Northwest
Territories. See footnote 6 supra.
No. 4]
LANGUAGE GUARANTEES
tained. Yet greater rigidity should be sought at the Federal level
than at the provincial, since the ultimate expression of the bicultural
nature of Confederation must be found in federal institutions.
The Fulton-Favreau Formula met the foregoing requirement, but
neglected to give sufficient protection to language rights in the
Provinces; both because it would have entrenched sec. 133 with its
existing imperfections, and also because it failed to provide for the
entrenchment of future provincial language legislation.6 4
Of the three general options outlined above 6 5 the authors prefer
the second, involving automatic entrenchment of language rights as
they are created by Parliament or the Provinces. However, the politi-
cal feasibility of this option cannot be taken as assured. The Prov-
inces might be unwilling to accept the requirement of Parliament’s
concurrence in the repeal of any extension of lafiguage rights. Fur-
thermore, it is obvious that some distinction must be made between
those language rights which are worthy of entrenchment 66 and
those which are purely local and trivial.6 7 Thus if this option should
prove unacceptable, the authors feel the amendment of sec. 133 as
suggested above 68 and its continued entrenchment is a basic mini-
mum. Included in an amended sec. 133 they would also hope to see
entrenchment of French language rights similar to those enjoyed
by the English of Quebec in Provinces where the French-speaking
population was large enough to justify it.
64 It is not unlikely that New Brunswick, for example, will shortly become
officially bilingual. The authors, moreover, venture to hope that Ontario, and
possibly Manitoba, will soon see fit to accord legal recognition to the claims of
their French-speaking populations.
65 See p. 515 of -this article supra.
66 Such as those pertaining to the legislatures, laws, courts, schools, and certain
basic principles of public administration.
67 Such as the language of public notices in a particular locality.
6s See pp. 515-16 supra.
V. – Lawmaking
According To Law
