Gilles Caron Appellant v. Her Majesty The Queen, 2015 SCC 56

SUPREME COURT OF CANADA Citation: Caron v.

Alberta, 2015 SCC 56, [2015] 3 S.C.R. 511 Date: 20151120 Docket: 35842 Between: Gilles Caron Appellant and Her Majesty The Queen Respondent And Between: Pierre Boutet Appellant and Her Majesty The Queen Respondent - and - Attorney General of Canada, Attorney General for Saskatchewan, Alberta Catholic School Trustees’ Association, Conseil scolaire Centre-Nord No. 2, Denis Lefebvre, Association canadienne-française de l’Alberta, Commissioner of Official Languages of Canada, Assemblée communautaire fransaskoise and Fédération des associations de juristes d’expression française de common law inc.

Interveners Coram: McLachlin C.J. and Abella, Rothstein, Cromwell, Moldaver, Karakatsanis, Wagner, Gascon and Côté JJ. Joint Reasons for Judgment: (paras. 1 to 114) Joint Dissenting Reasons: (paras. 115 to 244) Cromwell and Karakatsanis JJ. (McLachlin C.J. and Rothstein, Moldaver and Gascon JJ. concurring) Wagner and Côté JJ. (Abella J. concurring)

Caron v. Alberta, 2015 SCC 56, [2015] 3 S.C.R. 511 Gilles Caron Appellant v. Her Majesty The Queen Respondent - and - Pierre Boutet Appellant v. Her Majesty The Queen Respondent and Attorney General of Canada, Attorney General for Saskatchewan, Alberta Catholic School Trustees’ Association, Conseil scolaire Centre-Nord No. 2, Denis Lefebvre, Association canadienne-française de l’Alberta, Commissioner of Official Languages of Canada, Assemblée communautaire fransaskoise and Fédération des associations de juristes d’expression française de common law inc. Interveners Indexed as: Caron v.

Alberta 2015 SCC 56 File No.: 35842. 2015: February 13; 2015: November 20.

Present: McLachlin C.J. and Abella, Rothstein, Cromwell, Moldaver, Karakatsanis, Wagner, Gascon and Côté JJ. on appeal from the court of appeal for alberta Constitutional law — Language rights — Alberta laws and regulations — Alberta Languages Act provides provincial laws and regulations be enacted, printed and published in English only — Whether Languages Act is ultra vires or inoperative insofar as it abrogates constitutional duty owed by Alberta to enact, print and publish its laws and regulations in both English and French — Meaning of “legal rights” in 1867 Address to Queen concerning Rupert’s Land and North-Western Territory — Languages Act, R.S.A. 2000, c.

L-6 — Rupert’s Land and North-Western Territory Order (1870) (U.K.) (reprinted in R.S.C. 1985, App. II, No. 9), Schs. A, B. Provincial offences — Highways — Traffic offences — Alberta law and regulation under which accused were charged enacted, printed and published in English only — Whether Traffic Safety Act and other laws and regulations that have not been enacted, printed and published in both English and French unconstitutional — Languages Act, R.S.A. 2000, c. L-6 — Traffic Safety Act, R.S.A. 2000, c. T-6 — Use of Highway and Rules of the Road Regulation, Alta. Reg. 304/2002 .

C and B were charged with traffic offences under the Alberta Traffic Safety Act and the Use of Highway and Rules of the Road Regulation , which were enacted in English only. Both claimed that the law and regulation were unconstitutional because they were not enacted in French, and further that the Alberta Languages Act was inoperative to the extent that it abrogates what they claimed was a constitutional obligation on the part of Alberta to enact, print and publish its laws and regulations in both French and English.

In 1870, the vast western territories under the control of the Hudson’s Bay Company became part of Canada. The terms of this Canadian expansion were largely the result of negotiations and agreement between Canadian officials and representatives of the territories. The result was that the new province of Manitoba was added by the Manitoba Act, 1870 .

Further, the remainder of what had been the North-Western Territory and Rupert’s Land — a vast land mass including most of what is now Alberta, Saskatchewan, Nunavut, the Yukon, the Northwest Territories, and parts of Ontario and Quebec — was annexed as a new Canadian territory under federal administration by the 1870 Rupert’s Land and North-Western Territory Order (the “ 1870 Order ”) . The Manitoba Act, 1870 expressly provided for legislative bilingualism. The 1870 Order did not.

C and B contend, however, that legislative bilingualism was in fact guaranteed for both areas and therefore extends to themodern province of Alberta, which was created out of the new territory. Their argument is intricate and has changed over time, but restson one key proposition: an assurance given by Parliament in 1867 (the “1867 Address”) that it would respect the “legal rights of anycorporation, company, or individual” in the western territories must be understood as a promise of legislative bilingualism. And thatpromise is an entrenched constitutional right because the 1867 Address became a

schedule to the 1870 Order, which is part of theConstitution of Canada by virtue of s. 52(2)(

b) and the

Schedule to the Constitution Act, 1982. Their challenge was successful at trial, butwas rejected by the

summary conviction appeal court and by the Court of Appeal. Held (Abella, Wagner and Côté JJ. dissenting): The appeals should be dismissed. Per McLachlin C.J. and Rothstein, Cromwell, Moldaver, Karakatsanis and Gascon JJ.: Alberta is not constitutionallyobligated to enact, print and publish its laws and regulations in both French and English. C and B’s position is inconsistent with the text,context, and purpose of the documents on which they rely and must be rejected.

Absent some entrenched constitutional guarantee oflegislative bilingualism, a province has the authority to decide the language or languages to be used in its legislative process. Clearly, aprovince may choose to enact its laws and regulations in both French and English. But one cannot simply infer a guarantee of legislativebilingualism that would override this exclusive provincial jurisdiction absent clear textual and contextual evidence to support anentrenched right. Linguistic rights have always been dealt with expressly from the beginning of Canada’s constitutional history.

It has neverbeen the case that the words “legal rights” have been understood to confer linguistic rights. The words “legal rights” in the 1867 Addresscannot support a constitutional guarantee of legislative bilingualism in the province of Alberta. Contemporaneous guarantees of languagerights were explicit and clear. The Canadian Parliament knew how to entrench language rights and did so in the Constitution Act, 1867and the Manitoba Act, 1870 in very similar and very clear terms.

The total absence of similar wording in the contemporaneous 1867Address or 1870 Order counts heavily against C and B’s contention that the words “legal rights” should be understood to includelanguage rights. In fact, the contemporary discussions show that neither Canada nor the representatives of the territories ever considered thatthe promise to respect “legal rights” in the 1867 Address referred to linguistic rights.

Rather, the contemporary evidence shows that theterritorial representatives considered that their linguistic rights had been assured through the Manitoba Act, 1870, not the 1870 Order,and not the 1867 Address, which is annexed as a

schedule to the 1870 Order. In addition, the parliamentary debates related to theadoption of the 1867 Address show that language rights were not subsumed under the phrase “legal rights”. There is no doubt that the territorial representatives sought to entrench bilingual rights, just as there is no doubt they soughtfor the territories to enter Canada as a province. However, the contrast between the two contemporaneous documents in relation tolegislative bilingualism could not be more stark.

There is express provision in the Manitoba Act, 1870 for legislative bilingualism interms that were very similar to those used in s. 133 of the Constitution Act, 1867. However, in the 1870 Order, there is no expressreference to legislative bilingualism. This strongly suggests that while legislative bilingualism was successfully negotiated andestablished for the new province of Manitoba, there was no similar agreement or provision for legislative bilingualism in the newlyannexed territories. The purpose of the 1870 Order was simply to effect the transfer of Rupert’s Land and the North-Western Territory toCanada.

To the extent that an historic compromise was reached to entrench legislative bilingualism as part of the annexation of Rupert’sLand and the North-Western Territory, it was entrenched in the Manitoba Act, 1870, and not elsewhere. C and B’s position overlooks thefailure of the territorial representatives to have the entire territories enter Canada as a province. Instead, the territorial representativesaccepted a compromise whereby only a small portion of the territories — the province of Manitoba — would join the Dominion as aprovince, and the rest of the territories would be under Parliament’s jurisdiction.

This is no small detail. Many of the territorialrepresentatives’ demands were tied to the creation of a province and the existence of a provincial legislature (demands such as votingrights, representation in the Canadian Senate and House of Commons, and the subsidy to the province in proportion to its population).Like the right to legislative bilingualism, these demands were incorporated in the Manitoba Act, 1870, but the population outside thenewly created province received none of these rights.

Furthermore, it would be incongruous for an 1867 document to embody a compromise reached only three years later in1870. Rather, this tends to confirm that the end result of the negotiations was the Manitoba Act, 1870 — a bill adopted at the culminationof the negotiations. To be sure, it is possible that parties to a negotiation could agree to give effect to an agreement by entrenching an olderdocument. In the present case, however, this is implausible. B’s assumption that the British government could effectively entrench thecompromise regarding legislative bilingualism reached in 1870 — by incorporating as a

schedule an 1867 document issued not by theBritish government but by the Canadian government, one that makes no specific reference to language rights — is purely speculative. One cannot simply resort to the historical evidence of the desires and demands of those negotiating the entry of theterritories, and presume that those demands were fully granted. It is obvious that they were not. The Court must generously interpretconstitutional linguistic rights, not create them.

It must look at the ordinary meaning of the language used in each document, thehistorical context, and the philosophy or objectives lying behind the words and guarantees. Accepting C and B’s position that legislative bilingualism was entrenched for all of the annexed territories in 1870 wouldrequire holding that the understanding of the status of legislative bilingualism in the new province of Alberta was fundamentallymisunderstood by virtually everyone involved in the debate in the House of Commons at the time the province was created.

However,federal legislation and the related debates in relation to the new North-West Territories in 1875 and 1877 show that no one involvedthought that there had been any guarantee of legislative bilingualism in 1870. Finally, in 1988, this Court held in R. v. Mercure, (SCC), [1988] 1 S.C.R. 234, that there was noentrenched right to legislative bilingualism in Saskatchewan and the constitutional position of Alberta on this point is indistinguishable.

If C and B’s position is right, Mercure was wrong. Although the English text of the 1867 Address remains unchanged, the French texthas evolved over time. In the initial version published in the Journaux de la Chambre des communes de la Puissance du Canada, thephrase “legal rights” is translated as “droits acquis”. But in the text of the 1867 Address that was eventually annexed as a

schedule to the1870 Order, the phrase used is “droits légaux”. In any event, the analysis in this case does not depend upon which version of the Frenchtext is used. Whether the French version reads “droits acquis” or “droits légaux”, the conclusion remains the same. Per Abella, Wagner and Côté JJ. (dissenting): Alberta is constitutionally required to enact, print and publish its laws andregulations in both French and English.

This is because the historic agreement between the Canadian government and the inhabitants ofRupert’s Land and the North-Western Territory contained a promise to protect legislative bilingualism. That agreement isconstitutionally entrenched by virtue of the 1867 Address, which stated that upon Great Britain’s agreeing to transfer the territories,Canada would provide for the “legal rights” of any individual therein. The constitutional status of the 1867 Address is reaffirmed in the modern context by virtue of it being annexed to the 1870Order, which is a constitutional document pursuant to s. 52(2)(

b) of, and the

Schedule to, the Constitution Act, 1982. The principles ofconstitutional

interpretation must therefore be applied to the 1867 Address in order to establish the meaning of the term “legal rights”.Properly understood, the constitutional compromise that gave rise to the promise to respect “legal rights” encompasses legislativebilingualism. Moreover, the case of R. v. Mercure, (SCC), [1988] 1 S.C.R. 234, is not dispositive because this Courtdid not undertake an analysis of the compromise underlying the 1870 Order. The historical context leads to the unavoidable conclusion that there was a historic compromise regarding legislativebilingualism.

The 1867 Address established a constitutional guarantee of legislative bilingualism throughout the territories annexed in1870. The Address promised that, once the annexation took place, Canada would provide for the “legal rights” of any individual therein.By its very terms, this promise was a forward-looking undertaking that was meant to be shaped by subsequent negotiations. The meaningof its terms must therefore be informed by those negotiations.

The historical record shows convincingly that the territorial representatives demanded legislative bilingualism as a conditionof annexation, and that the Canadian representatives accepted that demand without objection — indeed, with assurances that it would bemet. This demand for legislative bilingualism and its acceptance by Canada were grounded in the pre-annexation linguistic rights andpractices in the territories, including an established right to legislative bilingualism.

This historical context shows that by the time the1870 Order annexed the territories to Canada, the Canadian government had come to accept that legislative bilingualism was among therights of the territories’ inhabitants. Thus, when the documents are properly interpreted in their entire context, legislative bilingualismwas included in the promise of the 1867 Address — itself incorporated into the 1870 Order — to respect the inhabitants’ “legal rights”.

Specifically, the historical evidence shows that linguistic rights were of paramount importance to the inhabitants, and thatthey demanded and obtained a promise that these rights would be protected. This conclusion is reached on the basis of six overarchingpoints. First, bilingualism was indisputably well established throughout Rupert’s Land and the North-Western Territory in the periodleading up to — and immediately following — the annexation. This was true of legislative bilingualism but also permeated the social andjudicial fabric of the community.

At trial, the judge thoroughly canvassed the pre-1870 legislative and judicial practices in Rupert’s Land. His findings of factare entitled to deference and may be disturbed only on the basis of a palpable and overriding error. He found that legislative and judicialbilingualism had existed before the annexation, and extended throughout the territories. He concluded that the French language had hadequal and official status before the annexation.

These commitments to bilingualism illustrate how deeply the French language was rootedin the region, and the fact that it formed an important part of the context in which the deal took place. Second, legislative bilingualism was consistently demanded in the negotiations and met with no resistance from theCanadian delegates, who were eager to reach a compromise with representatives of the inhabitants. Third, it was necessary to negotiatewith those representatives in order to proceed with the annexation.

Fourth, the Canadian and British governments made a number ofpromises that assured the inhabitants that bilingualism would be preserved. Fifth, the governments kept these promises and conductedthemselves in accordance with them in the years immediately following the 1870 compromise. Sixth, these linguistic practices, thedemands that they be maintained and the promises to maintain them applied throughout the territories and were not confined to the RedRiver Colony. The result of the negotiations was the addition of two new regions to the Dominion of Canada.

That these new regionsentered the Dominion pursuant to different instruments is no reason to ignore the singular context of the negotiations. The creation of theProvince of Manitoba and the explicit protection of minority language rights in that province cannot lead to an inference that no suchrights existed in the North-Western Territory. Such an

interpretation is inconsistent with fundamental principles of constitutionalinterpretation. Moreover, there is no evidence that the delegates simply capitulated and renounced their conditions as regards theextensive territory. The annexation was achieved not by conquest, but by negotiation. The end result of the negotiations regarding legislative bilingualism was not the enactment of the Manitoba Act, 1870 alone.Any other conclusion rests on the contrast between the Manitoba Act, 1870 and the 1870 Order and, in particular, on the fact that thelatter contained no express reference to legislative bilingualism.

This contrast is a “red herring” and is of no help in this case. These twoinstruments are not really comparable, as they did not come from the same legislative authorities — the Manitoba Act, 1870 was passedby the Canadian Parliament, while the 1870 Order was issued by the British authorities. Furthermore, the 1870 Order contained anexplicit promise to respect the “legal rights” of the inhabitants set out in the 1867 Address. This promise encompassed the protection oflegislative bilingualism. In addition, the Manitoba Act, 1870 not only dealt with matters arising in the new province, but also in theterritories.

Therefore, a proper understanding of the safeguards for legislative bilingualism set out in the Manitoba Act, 1870 is that theyeffectively extended to the newly created territories. Finally, the annexed territories fell under federal authority. It was thereforeguaranteed pursuant to s. 133 of the Constitution Act, 1867 that federal Acts applicable to the territories would be printed and publishedin both languages as a consequence of their being Acts of the Parliament of Canada. In sum, after the annexation, there were two Canadian legislatures that were competent to pass laws in the annexed

territories — the new Manitoba legislature and the Parliament of Canada. Both were under a constitutional obligation to publish laws inEnglish and French. In addition to the historical context, there are three principles of constitutional

interpretation that must inform any reading ofthe 1867 Address. The first is that the Constitution must be interpreted in light of its historical, philosophical and linguistic context. Thesecond is that constitutional provisions must be interpreted broadly and purposively. The third relates to the very nature of a constitution,which is an expression of the will of the people. The application of these principles to the 1867 Address leads to the conclusion that itenshrined a constitutional guarantee of legislative bilingualism that applied throughout the territories annexed in 1870.

It can be seen from the historical record that legislative bilingualism was in effect throughout the territories before theannexation. In fact, the Parliament of Canada delivered the 1867 Address in both languages. In the initial French version, the equivalentof the expression “legal rights” was “droits acquis”. This initial translation is significant because it provides insight into the drafters’intent. The French term “droit acquis” is more naturally translated into English as “vested right”.

Such a right can be defined as onebased on “very strong expectations the fulfilment of which citizens had just cause to count on”. This description of the rights that were tobe respected and protected by Canada upon the transfer of the region is apt given the historical context. Canada was making acommitment in relation to the annexation of the territories. The meaning of the term “legal rights” is therefore anchored in the context ofthe transfer — it refers to the “vested rights” of the inhabitants. And legislative bilingualism was one of them.

In addition, representatives of the territories demanded legislative bilingualism as a peremptory condition for annexation,and this demand was met with no resistance from Canada. On the contrary, Canadian representatives offered clear assurances thatlegislative bilingualism in the territories would unquestionably be provided for. Read against this background, the 1867 Address enshrined the promise of legislative bilingualism, and this

interpretation issupported by subsequent documents, notably the Royal Proclamation of 1869. Finally, nothing in the Manitoba Act, 1870 negates thisreading; indeed, that Act effectively ensured that legislative bilingualism would continue to prevail throughout the territories after theannexation. In short, the historical record clearly shows that there was an agreement to protect legislative bilingualism throughout theannexed territories. This agreement was constitutionally enshrined in the 1870 Order, which incorporated the 1867 Address, as isconfirmed by the events of that period.

Cases Cited By Cromwell and Karakatsanis JJ. Explained: R. v. Mercure, (SCC), [1988] 1 S.C.R. 234; Alberta v. Elder Advocates of Alberta Society,2011 SCC 24, [2011] 2 S.C.R. 261; referred to: Société des Acadiens du Nouveau-Brunswick Inc. v. Association of Parents for Fairnessin Education, (SCC), [1986] 1 S.C.R. 549; Reference re Secession of Quebec, (SCC), [1998] 2 S.C.R.217; Manitoba Metis Federation Inc. v. Canada (Attorney General), 2013 SCC 14, [2013] 1 S.C.R. 623, rev’g 2007 MBQB 293, 223Man. R. (2d) 42; Reference re Same-Sex Marriage, 2004 SCC 79, [2004] 3 S.C.R. 698; R. v.

Beaulac, (SCC), [1999] 1S.C.R. 768; Reference re Public Schools Act (Man.), s. 79(3), (4) and (7), (SCC), [1993] 1 S.C.R. 839; Reference reAuthority of Parliament in relation to the Upper House, (SCC), [1980] 1 S.C.R. 54; Reference re Public ServiceEmployee Relations Act (Alta.), (SCC), [1987] 1 S.C.R. 313; British Columbia (Attorney General) v. Canada (AttorneyGeneral), (SCC), [1994] 2 S.C.R. 41; R. v. Blais, 2003 SCC 44, [2003] 2 S.C.R. 236; Attorney General of Manitoba v.Forest, (SCC), [1979] 2 S.C.R. 1032; Reference re Manitoba Language Rights, (SCC), [1985] 1S.C.R. 721; R. v.

Van der Peet, (SCC), [1996] 2 S.C.R. 507; R. v. Marshall, (SCC), [1999] 3 S.C.R.456; R. v. Sappier, 2004 NBCA 56, 273 N.B.R. (2d) 93; R. v. Marshall, 2003 NSCA 105, 218 N.S.R. (2d) 78; Haida Nation v. BritishColumbia (Minister of Forests), 2004 SCC 73, [2004] 3 S.C.R. 511; R. v. Caron, 2011 SCC 5, [2011] 1 S.C.R. 78; British Columbia(Minister of Forests) v. Okanagan Indian Band, 2003 SCC 71, [2003] 3 S.C.R. 371; Conseil scolaire francophone de laColombie-Britannique v. British Columbia, 2013 SCC 42, [2013] 2 S.C.R. 774; DesRochers v. Canada (Industry), 2009 SCC 8, [2009] 1S.C.R. 194.

By Wagner and Côté JJ. (dissenting) R. v. Mercure, (SCC), [1988] 1 S.C.R. 234; R. v. Paquette, (SCC), [1990] 2 S.C.R. 1103;Reference re Secession of Quebec, (SCC), [1998] 2 S.C.R. 217; Reference re Supreme Court Act, ss. 5 and 6, 2014SCC 21, [2014] 1 S.C.R. 433; Delgamuukw v. British Columbia, (SCC), [1997] 3 S.C.R. 1010; Ross River DenaCouncil v. Canada (Attorney General), 2013 YKCA 6, 337 B.C.A.C. 299; General Motors Acceptance Corp. of Canada Ltd. v. Perozni(1965), (AB KB), 52 W.W.R. 32; Sinclair v. Mulligan (1886), 1886 CanLII 176 (MB KB), 3 Man. L.R. 481, aff’d(1888), 1889 CanLII 102 (MB CA), 5 Man.

L.R. 17; Manitoba Metis Federation Inc. v. Canada (Attorney General), 2013 SCC 14,[2013] 1 S.C.R. 623, rev’g 2007 MBQB 293, 223 Man. R. (2d) 42; R. v. Lefebvre (1986), 1986 ABCA 236 , 74 A.R. 81;Reference re Manitoba Language Rights, (SCC), [1985] 1 S.C.R. 721; Reference re Manitoba Language Rights, (SCC), [1992] 1 S.C.R. 212; Adler v. Ontario, (SCC), [1996] 3 S.C.R. 609; Ford v. Quebec (AttorneyGeneral), (SCC), [1988] 2 S.C.R. 712; Hunter v. Southam Inc., (SCC), [1984] 2 S.C.R. 145; R. v. Big MDrug Mart Ltd., (SCC), [1985] 1 S.C.R. 295; R. v.

Beaulac, (SCC), [1999] 1 S.C.R. 768; Reference reAuthority of Parliament in relation to the Upper House, (SCC), [1980] 1 S.C.R. 54; Tsilhqot’in Nation v. BritishColumbia, 2014 SCC 44, [2014] 2 S.C.R. 257. Statutes and Regulations Cited Act to amend the Acts respecting the North-West Territories, S.C. 1891, c. 22, s. 18. Alberta Act, S.C. 1905, c. 3 (reprinted in R.S.C. 1985, App. II, No. 20), s. 16.

Colonial Laws Validity Act, 1865 (U.K.), 28 & 29 Vict., c. 63, s. 2. Constitution Act, 1867 , ss. 93, 133 , 146 . Constitution Act, 1871 (U.K.), 34 & 35 Vict., c. 28 (reprinted in R.S.C. 1985, App. II, No. 11), s. 6. Constitution Act, 1982 , s. 52(2)( b ), Sch. Languages Act , R.S.A. 2000, c. L-6. Manitoba Act, 1870 , S.C. 1870, c. 3 (reprinted in R.S.C. 1985, App. II, No. 8),

preamble, ss. 23, 35. North-West Territories Act , R.S.C. 1886, c. 50, s. 110 [rep. & sub. 1891, c. 22, s. 18]. North-West Territories Act, 1875 , S.C. 1875, c. 49. North-West Territories Act, 1877 , S.C. 1877, c. 7, s. 11. North-West Territories Representation Act, 1886 , S.C. 1886, c. 24. Royal Proclamation (1869). Rupert’s Land Act, 1868 (U.K.), 31 & 32 Vict., c. 105 (reprinted in R.S.C. 1985, App. II, No. 6), ss. 3, 5. Rupert’s Land and North-Western Territory Order (1870) (U.K.) (reprinted in R.S.C. 1985, App. II, No. 9), Schs. A, B. Saskatchewan Act , S.C. 1905, c. 42 (reprinted in R.S.C. 1985, App.

II, No. 21), s. 16. Supreme Court Act , R.S.C. 1985, c. S-26, s. 47. Temporary Government of Rupert’s Land Act, 1869 , S.C. 1869, c. 3 (reprinted in R.S.C. 1985, App. II, No. 7), s. 5. Traffic Safety Act , R.S.A. 2000, c. T-6, ss. 115(2)(p), 160(1) . Use of Highway and Rules of the Road Regulation , Alta. Reg. 304/2002, s. 34(2).

Authors Cited Aunger, Edmund A. “Pourvoir à ce que les droits acquis soient respectés: la cause Caron et la protection constitutionnelle du bilinguisme officiel dans l’Ouest canadien”, dans Sophie Bouffard et Peter Dorrington, dir., Le statut du français dans l’Ouest canadien: la cause Caron . Montréal: Yvon Blais, 2014, 59. Begg, Alexander. History of the North-West , vol. I. Toronto: Hunter, Rose & Co., 1894. Canada. Chambre des communes. Journaux de la Chambre des communes de la Puissance du Canada , vol. I, 1 re sess., 1 re lég., 12 décembre 1867, p. 68. Canada. House of Commons.

Debates of the House of Commons , vol. LXXIII, 1st Sess., 10th Parl., June 27, 1905, p. 8242. Canada. House of Commons. House of Commons Debates , 1st Sess., 1st Parl., December 4, 5, 6, 9 and 11, 1867, pp. 181, 183, 194-96, 200, 203, 205, 208, 222-25, 244, 254. Canada. Select Committee on the Causes of the Difficulties in the North-West Territory in 1869-70. Report of the Select Committee on the Causes of the Difficulties in the North-West Territory in 1869-70 . Ottawa: I. B. Taylor, 1874. Canada. Senate. Debates of the Senate , 4th Sess., 3rd Parl., April 9, 1877, p. 319. Canada. Sessional Papers , vol.

V, 3rd Sess., 1st Parl., 1870, No. 12. Foucher, Pierre. “Le statut constitutionnel de la Proclamation royale de 1869”, dans Sophie Bouffard et Peter Dorrington, dir., Le statut du français dans l’Ouest canadien: la cause Caron . Montréal: Yvon Blais, 2014, 177. Gibson, Dale, with Lee Gibson and Cameron Harvey. Attorney for the Frontier: Enos Stutsman . Winnipeg: University of Manitoba Press, 1983. Great Britain. Correspondence Relative to the Recent Disturbances in the Red River Settlement . London: William Clowes & Sons, 1870. Great Britain. House of Commons. Select Committee on the Hudson’s Bay Company.

Report from the Select Committee on the Hudson’s Bay Company; Together with the Proceedings of the Committee, Minutes of Evidence, Appendix and Index . London: HMSO, 1858. Historical Atlas of Canada , vol. II, The Land Transformed: 1800-1891 , by R. Louis Gentilcore, Don Measner and Ronald H. Walder, eds. Toronto: University of Toronto Press, 1993. Hogg, Peter W. Constitutional Law of Canada , 5th ed. Supp. Toronto: Carswell, 2007 (updated 2014, release 1).

Mignault, P.-B. Le droit civil canadien , t. I. Montréal: C. Théorêt, 1895. Morton, W. L. Manitoba: The Birth of a Province . Altona, Man.: Friesen & Sons, 1965. New Nation (The) , February 4 and 11, 1870. Oliver, E. H., ed. The Canadian North-West: Its Early Development and Legislative Records , vol. I. Ottawa: Government Printing Bureau, 1914. Oliver, E. H., ed. The Canadian North-West: Its Early Development and Legislative Records , vol. II. Ottawa: Government Printing Bureau, 1915. Stanley, George F. G. The Birth of Western Canada: A History of the Riel Rebellions . London: Longmans, Green and Co., 1936.

Stubbs, Roy St. George. Four Recorders of Rupert’s Land: A Brief Survey of the Hudson’s Bay Company Courts of Rupert’s Land . Winnipeg: Peguis Publishers, 1967. Thomas, Lewis Herbert. The Struggle for Responsible Government in the North-West Territories: 1870-97 , 2nd ed. Toronto: University of Toronto Press, 1978. APPEALS from a judgment of the Alberta Court of Appeal (O’Brien, Slatter and Rowbotham JJ.A.), 2014 ABCA 71 , 92 Alta. L.R. (5th) 306, 569 A.R. 212, 606 W.A.C. 212, 306 C.C.C. (3d) 515, 301 C.R.R. (2d) 255, [2014] 6 W.W.R. 74, [2014] A.J.

No. 173 (QL), 2014 CarswellAlta 282 (WL Can.), affirming a decision of Eidsvik J., 2009 ABQB 745 , 23 Alta. L.R. (5th) 321, 476 A.R. 198 , [2010] 8 W.W.R. 318, [2009] A.J. No. 1468 (QL), 2009 CarswellAlta 2188 (WL Can.), setting aside the acquittals entered by Wenden Prov. Ct. J., 2008 ABPC 232 , 95 Alta. L.R. (4th) 307, 450 A.R. 204, [2008] 12 W.W.R. 675, [2008] A.J. No. 855 (QL), 2008 CarswellAlta 1046 (WL Can.). Appeals dismissed, Abella, Wagner and Côté JJ. dissenting. Roger J. F. Lepage , Francis P. Poulin and Romain Baudemont , for the appellant Gilles Caron. Sébastien Grammond, Allan Damer , Mark C.

Power , François Larocque and Justin Dubois , for the appellant Pierre Boutet. Peter P. Taschuk , Q.C. , Teresa R. Haykowsky , David D. Risling and Randy Steele , for the respondent. Alain Préfontaine and Catherine A. Lawrence , for the intervener the Attorney General of Canada. Graeme G. Mitchell , Q.C. , for the intervener the Attorney General for Saskatchewan. Kevin P. Feehan , Q.C. , and Anna Loparco , for the interveners the Alberta Catholic School Trustees’ Association, Conseil scolaire Centre-Nord No. 2 and Denis Lefebvre. Mark C.

Power , Justin Dubois and François Larocque , for the intervener Association canadienne-française de l’Alberta. Kevin Shaar and Christine Ruest Norrena , for the intervener the Commissioner of Official Languages of Canada. Roger J. F. Lepage and Francis P. Poulin , for the intervener Assemblée communautaire fransaskoise. Nicolas M. Rouleau , for the intervener Fédération des associations de juristes d’expression française de common law inc. The judgment of McLachlin C.J. and Rothstein, Cromwell, Moldaver, Karakatasanis and Gascon JJ. was delivered by Cromwell and Karakatsanis JJ. — I.

Introduction [ 1 ] These appeals sit at a contentious crossroads in Canadian constitutional law, the intersection of minority language rights and provincial legislative powers. The province of Alberta’s Languages Act , R.S.A. 2000, c. L-6, provides that laws may be enacted in English only. The appellants claim that this is unconstitutional.

While they take no issue with the general rule that the language of provincial legislation is a matter for the Province to decide, they say that an exception to this general rule applies here: there is a constitutional right, from which the Province may not derogate, to have Alberta laws enacted in both English and French. We will refer to this as a right to legislative bilingualism.

The Province maintains that there is no such right. [ 2 ] The appellants’ arguments take us back to the period leading up to 1870 when the vast western territory under the control of the Hudson’s Bay Company (“HBC”) became part of Canada. The terms of this Canadian expansion were largely the result of negotiations and agreement between Canadian officials and representatives of the territories. The result was that the new province of Manitoba was added by the Manitoba Act, 1870 , S.C. 1870 , c. 3.

Further, the remainder of what had been the North-Western Territory and Rupert’s Land — a vast land mass including most of what is now Alberta, Saskatchewan, Nunavut, the Yukon, the Northwest Territories, and parts of Ontario and Quebec — was annexed as a new Canadian territory under federal administration by the 1870 Rupert’s Land and North-Western Territory Order (U.K.) (reprinted in R.S.C. 1985, App. II, No. 9) (the “ 1870 Order ”) . The Manitoba Act, 1870 expressly provided for legislative bilingualism.

The 1870 Order did not. [ 3 ] The appellants contend, however, that legislative bilingualism was in fact guaranteed for both areas and therefore extends to the modern province of Alberta, which was created out of the new territory. Their argument is intricate and has changed over time, but rests on one key proposition: an assurance given by Parliament in 1867 (the “ 1867 Address ”) that it would respect the “legal rights of any corporation, company, or individual” in the western territories must be understood as a promise of legislative bilingualism.

And that promise is an entrenched constitutional right because the 1867 Address became

Schedule A to the 1870 Order which created

the new western Canadian territory and which is part of the Constitution of Canada by virtue of s. 52(2)(

b) and the

Schedule to theConstitution Act, 1982. [4] The appellants’ position, however, is inconsistent with the text, context, and purpose of the documents on whichthey rely and must be rejected. The words “legal rights” or “droits aquis” / “droits légaux”, read in their full context and in light of theirpurpose, simply cannot bear the weight the appellants seek to attach to them. Specifically: (

i) Never in Canada’s constitutional history have the words “legal rights” been taken to confer linguistic rights; (ii) Legislative bilingualism is expressly provided for in the Manitoba Act, 1870 but is not mentioned in either the 1867 Addressor the 1870 Order, the documents upon which the appellants rely.

It is inconceivable that such an important right, if it were granted,would not have been granted in explicit language as it was in the Canadian Constitution and in the Manitoba Act, 1870, which wasenacted at the same time as the 1870 Order was made; (iii) The contemporary discussions show that neither Canada nor the representatives of the territories ever considered that thepromise to respect “legal rights” in the 1867 Address referred to linguistic rights; (iv) The contemporary evidence also shows that the territorial representatives themselves considered that their linguistic rights hadbeen assured through the Manitoba Act, 1870, not the 1867 Address or the 1870 Order; (

v) Federal legislation and debates surrounding it in relation to the new North-West Territories in 1875 and 1877 show that noone involved thought that there had been any guarantee of legislative bilingualism in 1870; and (vi) In 1988, this Court held in R. v. Mercure, (SCC), [1988] 1 S.C.R. 234, that there was no entrenched right tolegislative bilingualism in Saskatchewan and the constitutional position of Alberta on this point is indistinguishable.

If the appellants areright, Mercure was wrong. [5] There is, of course, no question that linguistic duality and linguistic rights with respect to French and English aredeeply rooted in our history and reflect our fundamental principles of constitutionalism and the protection of minorities. They are basicto the very idea of Canada. The Court must, as it has often affirmed, “take special care to be faithful to the spirit and purpose of theguarantee of language rights”: Mercure, at p. 269, quoting Société des Acadiens du Nouveau-Brunswick Inc. v.

Association of Parentsfor Fairness in Education, (SCC), [1986] 1 S.C.R. 549, at p. 564. The Court must also be mindful, however, thatfederalism — another fundamental constitutional principle — recognizes a large measure of “autonomy of provincial governments todevelop their societies within their respective spheres of jurisdiction”: Reference re Secession of Quebec, (SCC),[1998] 2 S.C.R. 217, at para. 58.

We must be equally faithful to the spirit and purpose of all of these fundamental constitutionalprinciples. [6] We therefore cannot, as the appellants ask us to do, allow the pursuit of language rights to trample on areas of clearprovincial legislative jurisdiction. Neither can we resolve the tension arising from the interplay of fundamental constitutional principles,as the appellants ask us to do, by resorting to broad and uncontroversial generalities, or by infusing vague phrases with improbablemeanings.

Rather, we must examine the text, context and purpose of our Constitution to see whether there is a constitutional constrainton the power of the province of Alberta to decide in what language or languages it will enact its legislation. [7] Having done so, our view is that there is no such constraint and that the appeals must be dismissed. II. Overview of the Litigation [8] This dispute had an inauspicious beginning when Gilles Caron and Pierre Boutet were charged with traffic offencesunder an Alberta law and regulation: s. 34(2) of the Use of Highway and Rules of the Road Regulation, Alta.

Reg. 304/2002; ss. 160(1)and 115(2)(

p) of the Traffic Safety Act, R.S.A. 2000, c. T-6. Both claimed the law and regulation were unconstitutional because theywere not enacted or published in French, and further that the Alberta Languages Act was inoperative to the extent that it abrogates whatthey claimed was a constitutional obligation on the part of Alberta to enact, print, and publish its laws and regulations in both French andEnglish. [9] Their challenge was successful at trial (2008 ABPC 232, 95 Alta. L.R. (4th) 307), but was rejected by the

summaryconviction appeal court (2009 ABQB 745, 23 Alta. L.R. (5th) 321), and by the Court of Appeal (2014 ABCA 71, 92 Alta. L.R. (5th)306). The main issue now before this Court, as set out in the first constitutional question stated by the Chief Justice, is whether the“Languages Act [is] ultra vires or inoperative insofar as it abrogates a constitutional duty owed by Alberta to enact, print and publish itslaws and regulations in English and in French”. III. Historical and Legislative Background [10] The issues in this case are situated in a complex historical and legislative context.

It will be helpful before turning tothe legal issues to provide a brief outline of that background. A. The Initial Confederation and the Plans for Expansion [11] On July 1, 1867, the provinces of Canada, Nova Scotia and New Brunswick united to form Canada underconstitutional arrangements set out in an Imperial statute now known as the Constitution Act, 1867. Linguistic rights were, of course, akey issue in the discussions leading to this union. The Constitution Act, 1867 explicitly addressed legislative bilingualism in its s. 133,which provides: 133.

Either the English or the French Language may be used by any Person in the Debates of the Houses of the Parliament of Canadaand 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. [ 12 ] At that time, the vast territories to the west and northwest of the new Dominion were known as Rupert’s Land and the North-Western Territory. They were controlled by the HBC.

It operated a fur trade under Royal Charter, and exercised various governmental functions, including a legal system ( Manitoba Metis Federation Inc. v. Canada (Attorney General) , 2013 SCC 14 , [2013] 1 S.C.R. 623, at paras. 20-23 ; Mercure , at pp. 287-88). As the provincial court judge found, the use of French was a feature of life in the territories at that time. The Constitution Act, 1867 anticipated that these two western territories might eventually become part of the new Dominion of Canada.

Section 146 authorized the Queen to admit Rupert’s Land and the North-Western Territory into Confederation “on Address from the Houses of the Parliament of Canada” and “on such Terms and Conditions in each Case as are in the Addresses expressed and as the Queen thinks fit to approve”.

Thus, the procedure for annexation contemplated a formal request from the Canadian Parliament setting out the proposed terms of annexation, which Her Majesty could then approve or not. [ 13 ] The addresses that were ultimately made leading to the annexation of these territories are critical to the appellants’ contention that there is an entrenched constitutional right to legislative bilingualism that binds the province of Alberta. B.

The Addresses [ 14 ] In December 1867, the Parliament of Canada delivered an address to the Queen asking the Imperial Parliament to “unite Rupert’s Land and the North-Western Territory with this Dominion” and to grant Canada authority to legislate in respect of the territories ( 1867 Address ). As part of the address, Canada promised that, in the event of a transfer, Canada “will be ready to provide that the legal rights of any corporation, company, or individual within the same shall be respected”.

The appellants attach great weight to the undertaking by Canada in this 1867 Address to respect the “legal rights” of those in the territories, submitting that when read in their full context, these words gave assurance that there would be legislative bilingualism in the territories and hence in what eventually became the province of Alberta. [ 15 ] Although the English text of the 1867 Address remains unchanged, the French text has evolved over time.

In the initial version published in the Journaux de la Chambre des communes de la Puissance du Canada , the phrase “legal rights” is translated as “ droits acquis ” (vol. I, 1st Sess., 1st Parl., December 12, 1867). But in the text of the 1867 Address that was eventually annexed as a

schedule to the 1870 Order , the phrase used is “ droits légaux ”. We also note that the French constitutional drafting committee later recommended a third version of the 1867 Address , which simply used the word “ droits ”. However, Parliament did not adopt this recommendation. In any event, our analysis does not depend upon which version of the French text is used. Whether the French version reads “ droits acquis ” or “ droits légaux ”, our conclusion remains the same. [1] [ 16 ] The Imperial government initially refused Canada’s request set out in the 1867 Address .

It preferred to see a negotiated admission of the territories into Canada. Canada was thus compelled to undertake negotiations with the HBC in order to convince the Imperial government to accede to the transfer. [ 17 ] In the ensuing negotiations, Canada agreed to pay the HBC £300,000 and to allow it to retain some land around its trading posts. In May 1869, the Canadian Parliament adopted a second address, which asked the Queen to annex Rupert’s Land on the conditions agreed to with the HBC and provide for the incorporation of Rupert’s Land into Canada ( 1870 Order ,

Schedule B (the “ 1869 Address ”)). As part of the 1869 Address , Parliament authorized and empowered the Governor in Council “to arrange any details that may be necessary to carry out the terms and conditions of the above agreement”. [ 18 ] Over the course of the subsequent months in 1869 and 1870, the HBC surrendered its charter to the British Crown in preparation for annexation of the territories by Canada. C. Opposition to Annexation [ 19 ] The prospect of annexation led to unrest in the territories, particularly in the major population centre of the Red River Settlement.

In November 1869, a group of inhabitants blocked the entry of Canada’s proposed Lieutenant Governor of the new territory. Shortly thereafter, a group of Métis inhabitants, including Louis Riel, seized control of Upper Fort Garry in the Red River Settlement. Riel summoned representatives of the English- and French-speaking parishes. These representatives and others subsequently formed a provisional government. [ 20 ] In the months that followed, the representatives issued a number of demands that Canada would have to satisfy before they would accept Canadian control.

These demands took the form of “Lists of Rights”: one produced in December 1869, another in February 1870, and another in March 1870. [ 21 ] Among the items listed was the demand that “the English and French languages be common in the Legislature and Courts, and that all public documents and Acts of the Legislature be published in both languages” (second List of Rights, art. 12, reproduced in Sessional Papers , vol. V, 3rd Sess., 1st Parl., 1870, No. 12, app., at p. 11; see also Prov. Ct. reasons, at paras. 208-12; Queen’s Bench reasons, at paras. 65-83; W. L.

Morton, Manitoba: The Birth of a Province (1965), at pp. 242-50). This demand reflected the practice of the time in the territories. The representatives also demanded that both Rupert’s Land and the North-Western Territory should enter Canada as a province named Assiniboia, that the bargain with the HBC over annexation should be annulled, and that all future public infrastructure should be at the cost of the federal government (third List of Rights, Archives of Manitoba, Red River Disturbance collection, SIS 4/B/10). [ 22 ] Canada treated these activities as acts of rebellion.

The Governor General issued the 1869 Royal Proclamation on December 6, 1869 (“ 1869 Proclamation ”), referring to the “sorrow and displeasure with which the Queen views the unreasonable and

lawless proceedings which have occurred” (reproduced in Sessional Papers , No. 12, at pp. 43-44). It assured the residents that on the union with Canada all your civil and religious rights and privileges will be respected , your properties secured to you, and that your Country will be governed, as in the past, under British laws, and in the spirit of British justice. [Emphasis added.] The appellants also rely on the emphasized words as being evidence of a guarantee of legislative bilingualism. D.

The Creation of the New Province of Manitoba and the New North-Western Territory in 1870 [ 23 ] As this Court explained in Manitoba Metis , the Canadian government subsequently adopted “a conciliatory course” (para. 28). Canadian representative Donald Smith met with Riel and members of the provisional government in early 1870 to discuss their concerns.

While Smith noted that final authority rested with Parliament, he assured the representatives that he would communicate their demands to Ottawa (Court of Appeal reasons, at para. 130; The New Nation , February 11, 1870). [2] Canada subsequently invited a delegation to Ottawa to present the demands of the settlers. Three delegates from the provisional government travelled to Ottawa in April 1870 to negotiate: Father Ritchot, a priest; Judge Black, a judge; and Alfred Scott, a local businessman. They met and negotiated with Prime Minister John A.

Macdonald and the Minister of Militia and Defence, George-Étienne Cartier. There is little evidence regarding the substance of these negotiations. However, the representatives were ultimately unsuccessful in securing agreement that the entire territories would enter Canada as a province.

Instead, a compromise was reached whereby only a small portion of the territories — the new province of Manitoba — would join the Dominion as a province, and the rest of the territories would be annexed to Canada as a new territory under Parliament’s jurisdiction. [ 24 ] As agreed, Parliament passed the Manitoba Act , 1870 in May 1870, which created the province of Manitoba out of part of the territories; this included the Red River Settlement within its boundaries.

In June 1870, the Queen in Council issued the 1870 Order , which ordered the admission of Rupert’s Land and the North-Western Territory into Canada as a territory on the terms and conditions set forth in the addresses made by Canada. The 1867 Address and the 1869 Address were attached as schedules to the 1870 Order . The 1870 Order , with its schedules, was subsequently included in the

schedule to the Constitution Act, 1982 . [ 25 ] Thus, the result of the annexation process was the creation of one province, Manitoba, with the remaining annexed territory comprising the North-Western Territory (later known as the Northwest Territories). In 1869, in anticipation of these annexations, Canada had enacted the Temporary Government of Rupert’s Land Act, 1869 , S.C. 1869, c. 3 . Following the passage of the Manitoba Act, 1870 , the remainder of the annexed lands outside the new province continued to be governed under this interim scheme.

Parliament subsequently enacted The North-West Territories Act, 1875 , S.C. 1875, c. 49, which established a legislative assembly and a court of civil and criminal jurisdiction in the North-West Territories. [ 26 ] It was out of the North-West Territories that the provinces of Alberta and Saskatchewan would be created in 1905: Alberta Act , S.C. 1905, c. 3; Saskatchewan Act , S.C. 1905, c. 42. IV. Analysis A. Overview of the Position of the Parties [ 27 ] The appellants contend that there is a constitutional right to legislative bilingualism in Alberta.

The origin of this right, they argue, is an historic agreement reached between the Canadian government and the inhabitants of Rupert’s Land and the North-Western Territory that cleared the way for the transfer of the territories to Canada. [ 28 ] The appellants’ main argument is that the right to legislative bilingualism was entrenched by the 1870 Order in which the Canadian Parliament assured the Queen that Canada would respect the “legal rights” of the population of Rupert’s Land and the North-Western Territory upon transfer to Canada. This assurance is found in the 1867 Address , which is attached as a

schedule to the 1870 Order .

The relevant passage reads as follows: That in the event of your Majesty’s Government agreeing to transfer to Canada the jurisdiction and control over the said region, the Government and Parliament of Canada will be ready to provide that the legal rights of any corporation, company, or individual within the same shall be respected , and placed under the protection of Courts of competent jurisdiction. [Emphasis added.] [ 29 ] In this Court, the appellants rely in particular on the French version of the 1867 Address , in which “legal rights” is translated as “ droits acquis ” / “ droits légaux ”. [ 30 ] The appellants argue that in the context of the unrest in the Red River Settlement, the Lists of Rights, and the negotiations with the inhabitants of the territories, the promise to respect “legal rights” or “ droits acquis ” / “ droits légaux ” constitutionalized an historic compromise to protect legislative bilingualism in the entirety of the territories transferred to Canada in 1870 — which includes the modern-day province of Alberta.

According to the appellants, this constitutional guarantee prevents the Province from legislating in a manner that would undermine legislative bilingualism, an area otherwise within its exclusive competence. [ 31 ] The appellants also rely on events following the transfer of the territories to support their argument. They see evidence that the 1870 Order entrenched an obligation of bilingual governance throughout the entire annexed territories because (1) there was, in effect, bilingual administration of the North-Western Territory beginning in 1870; and

(2) Parliament had to legislate in French and English with regard to the territories under its jurisdiction in accordance with s. 133 of the Constitution Act, 1867 . To the appellants, this shows that the inhabitants of the territories were successful in obtaining entrenched bilingual governance throughout the entire annexed lands. [ 32 ] The appellant Mr. Caron also argues that the Governor General of Canada promised to guarantee legislative bilingualism in the transferred territories because he assured the population in the 1869 Proclamation that “on the union with Canada all

your civil and religious rights and privileges will be respected”. This promise, once again, would be entrenched by the 1870 Orderbecause the latter empowers the Governor in Council to “arrange any details” necessary to carry out the annexation process. In Mr.Caron’s view, the promise embodied in the 1869 Proclamation would therefore be a “detail” that was necessary to arrange. [33] The respondent maintains that there is no such guarantee in the 1870 Order or anywhere else.

The documents reliedupon by the appellants stand in stark contrast to the Manitoba Act, 1870, with its specific guarantee of language rights, and otherdocuments of the time. Accordingly, there was no corresponding constitutional obligation that could have bound Alberta from the timeof its creation. [34] As we see it, there are many fundamental flaws in the appellants’ position. We will outline why we think so afterturning briefly to the governing interpretative principles. B. Guiding Principles of

Interpretation [35] Constitutional documents should be interpreted in a large and liberal manner: see Reference re Same-Sex Marriage,2004 SCC 79, [2004] 3 S.C.R. 698, at para. 23. Moreover, important guiding principles apply in relation to language rights and theprotection of minorities. Language rights must be interpreted purposively and remedially, “in a manner consistent with the preservationand development of official language communities in Canada”: R. v.

Beaulac, (SCC), [1999] 1 S.C.R. 768, at para. 25,citing Reference re Public Schools Act (Man.), s. 79(3), (4) and (7), (SCC), [1993] 1 S.C.R. 839, at p. 850; Referencere Secession of Quebec.

When looking at historical rights involving minorities, we must be mindful that, even at the time ofConfederation, the protection of minority rights was “an essential consideration in the design of our constitutional structure”: Referencere Secession of Quebec, at para. 81, citing Reference re Authority of Parliament in relation to the Upper House, (SCC),[1980] 1 S.C.R. 54, at p. 71. [36] These important principles, however, do not undermine the primacy of the written text of the Constitution: Reference re Secession of Quebec, at para. 53.

The Constitution, the Court has emphasized, “should not be regarded as an empty vesselto be filled with whatever meaning we might wish from time to time”: Reference re Public Service Employee Relations Act (Alta.), (SCC), [1987] 1 S.C.R. 313, at p. 394; see also British Columbia (Attorney General) v. Canada (Attorney General), (SCC), [1994] 2 S.C.R. 41 (“Vancouver Island Railway (Re)”); P. W. Hogg, Constitutional Law of Canada (5th ed. Supp.), atp. 15-50. [37] As Iacobucci J. observed in Vancouver Island Railway (Re): “Although constitutional terms must be capable ofgrowth, constitutional

interpretation must nonetheless begin with the language of the constitutional law or provision in question” (p. 88). More recently, this Court in R. v.

Blais, 2003 SCC 44, [2003] 2 S.C.R. 236, cautioned that courts are “not free to invent new obligationsforeign to the original purpose of the provision”; rather, “[t]he analysis must be anchored in the historical context of the provision” (para.40). [38] Thus, we must assess the appellants’ arguments by looking at the ordinary meaning of the language used in eachdocument, the historical context, and the philosophy or objectives lying behind the words and guarantees.

We cannot simply resort tothe historical evidence of the desires and demands of those negotiating the entry of the territories, and presume that those demands werefully granted. It is obvious that they were not. The Court must generously interpret constitutional linguistic rights, not create them. C. Analysis of the Appellants’ Submissions [39] For many reasons, we reject the appellants’ submission that the guarantee of legal rights in the 1867 Address createda constitutional right to legislative bilingualism.

(1) Never in Canada’s Constitutional History Have the Words “Legal Rights” Been Understood to Confer Linguistic Rights —Contemporaneous Guarantees of Language Rights Were Explicit and Clear [40] As our brief historical overview shows, linguistic rights have always been dealt with expressly from the beginning ofour constitutional history. Language rights were dealt with explicitly in s. 133 of the Constitution Act, 1867 and in the Manitoba Act,1870 in very similar and very clear terms.

The total absence of similar wording in the contemporaneous 1870 Order counts heavilyagainst the appellants’ contention that the terms “legal rights” or “droits acquis” / “droits légaux” in the 1867 Address (attached to thatorder) should be understood to include language rights. [41] The year 1867 saw both the Confederation of Canada and the adoption by Parliament of the 1867 Address. As ourcolleagues note, the negotiations surrounding Confederation turned in no small part on the issue of language rights.

When these rightswere addressed in the Constitution Act, 1867, they were addressed explicitly, not by means of implied inclusion in a general term such as“legal rights”. [42] Subsequently, the Manitoba Act, 1870 and the 1870 Order formed a comprehensive political arrangement regardingannexation.

Section 23 of the Manitoba Act, 1870 expressly provided for legislative bilingualism in terms very similar to those found ins. 133 of the Constitution Act, 1867: 23. [English and French languages to be used] Either the English or the French language may be used by any person in the debates of theHouses of the Legislature, and both those languages shall be used in the respective Records and Journals of those Houses; and either ofthose languages may be used by any person, or in any Pleading or Process, in or issuing from any Court of Canada established under theConstitution Act, 1867, or in or from all or any of the Courts of the Province.

The Acts of the Legislature shall be printed and publishedin both those languages. [43] The Constitution Act, 1871 (U.K.), 34 & 35 Vict., c. 28, an Imperial statute, confirmed the Manitoba Act, 1870 andprovided that the Canadian Parliament could not amend it: s. 6. In contrast, there is no similar express reference to legislativebilingualism in the 1870 Order or the 1867 Address annexed to it.

[44] When Manitoba tried to amend s. 23 to provide for English language only legislation, the amendment was ruledunconstitutional by Manitoba courts in 1892, 1909, and 1976, and by this Court in 1979 in Attorney General of Manitoba v. Forest, (SCC), [1979] 2 S.C.R. 1032 (see Reference re Manitoba Language Rights, (SCC), [1985] 1 S.C.R. 721, atpp. 732-33).

The Court held that the province’s legislative authority to amend the provincial constitution did not extend to giving it theauthority to amend the guarantee of language rights in s. 23 of the Manitoba Act, 1870. [45] In Forest, the Court held that s. 23 of the Manitoba Act, 1870 was modelled after s. 133 of the Constitution Act,1867, which provides for (among other things) legislative bilingualism in the Parliament of Canada and the Quebec legislature.

ThisCourt also drew upon the similarity between these provisions in Reference re Manitoba Language Rights: . . . the drafters of the Constitution Act, 1867 . . . intended s. 133’s language guarantees to be just that — guarantees. And the use byParliament only three years later of nearly identical language in s. 23 of the Manitoba Act, 1870 is strong evidence of a similarintendment with regard to the language provisions of that Act. [Emphasis deleted; p. 739.] [46] The relevant time period of these provisions — 1867 to 1870 — coincides with the events and instruments on whichthe appellants rely.

Given this contemporaneity, the express and mandatory language respecting legislative bilingualism used by theImperial Parliament in s. 133 in the Constitution Act, 1867 and by the Parliament of Canada in the Manitoba Act, 1870 stands in markedcontrast to the complex web of instruments, vague phrases, political pronouncements and historical context on which the appellants’claims depend. [47] Had the intent been to accord constitutional protection to language rights in the annexed territories outside Manitoba,wording similar to s. 23 of the Manitoba Act, 1870 would have been used in the 1870 Order.

But there is no similarity between, on theone hand, the specific guarantees of language rights in s. 133 and s. 23 and, on the other, the general reference to “legal rights” or “droitsacquis” / “droits légaux” found in the

schedule to the 1870 Order. [48] In sum, contemporaneous guarantees of language rights were explicit and clear: legislative bilingualism wasprovided for expressly in the Constitution Act, 1867 and the Manitoba Act, 1870. And, as we shall see, the subject of legislativebilingualism was addressed — explicitly — in the amendments to The North-West Territories Act in 1877 and 1891 (The North-WestTerritories Act, 1877, S.C. 1877, c. 7;

An Act to amend the Acts respecting the North-West Territories, S.C. 1891, c. 22). Never inCanada’s constitutional history have the words “legal rights” been understood to confer linguistic rights. These facts considerablyundermine the appellants’ position. [49] But it is not just the documents themselves that belie the appellants’ claim. The context surrounding the creation ofthese documents further illuminates the point that “legal rights” are and always have been distinct from language rights. Let us turn tothat context.

(2) The Representatives of the Territories Never Considered That the Promise to Respect “Legal Rights” Referred to LinguisticRights [50] The political leaders in the territories treated language-related demands as distinct from the protection of other, moregeneral or proprietary, rights. [51] For example, the second List of Rights produced in February 1870 included specific language claims at arts. 12 and13: 12. That the English and French languages be common in the Legislature and Courts, and that all public documents and Acts of theLegislature be published in both languages. 13.

That the Judge of the Supreme Court speak the French and English languages. By contrast, art. 16 in the same List of Rights contained an independent claim related to other, more general rights: 16. That all properties, rights and privileges, as hitherto enjoyed by us, be respected . . . .

The words “rights and privileges” are similar to those used in the 1867 Address (and the 1869 Proclamation). [52] In short, the Lists of Rights demonstrate that political leaders in the territories themselves expressly provided forlanguage rights when they were meant to be protected and those rights were differentiated from other, more general, rights.

(3) Parliamentary Debates Show That the Promise to Respect Legal Rights in the 1867 Address Did Not Refer to Linguistic Rights [53] The parliamentary debates related to the adoption of the 1867 Address show that language rights were not subsumedunder the term “legal rights” or “droits acquis” / “droits légaux”. As the provincial court judge found, the parliamentary debates aboutthe part of the text including “legal rights” concerned whether the HBC had a legal right to the territory: para. 499.

It is clear from thedebates that Parliament understood “legal rights” in this context as describing the proprietary rights over the territory and other rightsflowing from it (such as the exclusive right to trade granted to the HBC under the Royal Charter). These were rights that could bevalued, and on which an agreement could be reached. [54] A major point of disagreement throughout the debate focused on the parliamentary grant of power to the executive toreach an agreement with the HBC regarding the HBC’s “legal rights”, and the undetermined cost of such an agreement.

In the end, thedraft 1867 Address was amended to delete reference to a possible agreement. Speaking in Parliament, the then-Minister of Public Worksconfirmed that the legal rights envisaged were rights that might exist with regard to the territory itself:

. . . these amendments would remove all difficulties that had arisen in the course of the debates, and the Address would then stand asembodying a proposition by the Parliament of this country to assume that territory, reserving and protecting all rights that might exist inregard to it . . . . [Emphasis added.] (House of Commons Debates, 1st Sess., 1st Parl. (“Debates”), December 9, 1867, at p. 223) [55] The Minister’s understanding of “legal rights” was shared by other members of Parliament: see e.g. Debates,December 4, 5, 6, 9 and 11, 1867, at pp. 181, 183, 194-96, 200, 203, 205, 208, 222-25, 244 and 254.

One Member of Parliament statedthat the HBC had “no legal right” in the sense that it had no “claim to the territory” (December 4, 1867, at p. 183). Similarly, whilereferring to the “rights” that might be claimed by existing corporations, Prime Minister John A. Macdonald gave assurance that thepromises in the 1867 Address “would forbid the suspicion that any confiscation was mediated” (December 6, 1867, at p. 200). Clearly,his focus was on rights that were capable of confiscation.

Language rights, by their very nature, are not. [56] Of course, this is not to suggest that the intentions of Parliament occupy a position of privilege over those of theterritorial inhabitants negotiating three years later in 1870. On the contrary, the understanding and intention of the representatives andnegotiators also informs the context of the negotiations in 1870. However, there is no evidence that they used the words “legal rights”from the 1867 Address in the broad manner suggested by the appellants.

(4) Contemporary Evidence Shows That the Parties Thought That Linguistic Rights Were Addressed in the Manitoba Act, 1870But Not in the 1870 Order [57] The appellants invite this Court to interpret the 1870 Order and the 1867 Address purposively to give effect to thehistoric compromise reached between the Canadian government and the population of the territories regarding the right to legislativebilingualism. The purpose of the 1870 Order, they submit, is to effectuate the transfer of the territories while entrenching this wide-ranging agreement.

Accordingly, the words “legal rights” or “droits acquis” / “droits légaux” must be interpreted in light of such anagreement. [58] While there can be no debate that there was a political compromise or that constitutional provisions must beinterpreted purposively, we cannot accept the appellants’ conclusion. The end result of the negotiations regarding legislativebilingualism was the enactment of the Manitoba Act, 1870.

Conversely, it was never the objective of the 1870 Order to dictate thatFrench and English must be used by the legislative body governing the newly established North-Western Territory. [59] Our colleagues emphasize what they see as a lack of opposition on the part of the Canadian government toentrenching bilingualism in the entirety of the territories entering Canada.

We would note, however, that the lack of evidence ofopposition by the Canadian negotiators does not provide evidence for the inverse proposition — namely, that Canada was content toentrench bilingualism in the North-Western Territory, by way of an order of the Imperial Crown. There is no evidence to this effect. [60] However, there is no doubt the delegates sought to entrench bilingual rights, just as there is no doubt they sought forthe territories to enter Canada as a province. That being said, the contrast between the two contemporaneous documents in relation tolegislative bilingualism could not be more stark.

As discussed above, there is express provision in the Manitoba Act, 1870 for legislativebilingualism in terms that were very similar to those used in s. 133 of the Constitution Act, 1867. However, in the 1870 Order, there isno express reference — none — to legislative bilingualism. This strongly suggests that while legislative bilingualism was successfullynegotiated and established for the new province of Manitoba (per s. 23 of the Manitoba Act, 1870), there was no similar agreement orprovision for legislative bilingualism in the newly annexed territories.

It is noteworthy that the major population centre of the Red RiverSettlement became part of the province of Manitoba, while the sparsely populated areas of Rupert’s Land and the North-WesternTerritory became a federally administered territory. [61] While we take no issue with the factual findings of the provincial court judge regarding the negotiations between thedelegates and Canada, we disagree with his legal conclusion that the negotiations resulted in a pact with Canada to establish legislativebilingualism in all of the annexed territories (para. 354).

In this respect, there is a helpful distinction drawn in Aboriginal rightsjurisprudence between a trial judge’s findings of fact on historical matters, which are entitled to deference, and the legal inferences orconclusions that a trial judge draws from such facts, which are not. As Lamer C.J. explained in R. v.

Van der Peet, (SCC), [1996] 2 S.C.R. 507, “[the trial judge’s] determination of the scope of the appellant’s aboriginal rights on the basis of the facts ashe found them . . . is a determination of a question of law which, as such, mandates no deference from this Court” (para. 82; see also R. v.Marshall, (SCC), [1999] 3 S.C.R. 456, at para. 18; and R. v. Sappier, 2004 NBCA 56, 273 N.B.R. (2d) 93, at para.76).

In our view, the same distinction applies with respect to the historical factual findings of the provincial court judge in this case, andthe legal inferences he draws on the basis of these facts. [62] The purpose of the 1870 Order was simply to effect the transfer of Rupert’s Land and the North-Western Territoryto Canada. To the extent that an historic compromise was reached to entrench legislative bilingualism as part of the annexation ofRupert’s Land and the North-Western Territory, this took the form of s. 23 of the Manitoba Act, 1870.

As this Court explained inMercure: After some tense confrontations, in which demands were made that English and French be used in the legislature and that judges speakboth languages, the Canadian government acceded to the demands of the people of the Territories.

To that end, Canada enacted theManitoba Act, 1870, S.C. 1870, c. 3, which created the province of Manitoba out of the Red River settlement and surrounding lands, andby s. 23, provided certain guarantees regarding the use of the English and French languages in the Manitoba Legislature and in its courts. [p. 249] [63] There is ample evidence in the historical record confirming the parties’ understanding that the compromise reachedwas for legislative bilingualism in the province of Manitoba, in the form of the Manitoba Act, 1870.

It created a new province includingthe population centre of the Red River Settlement and incorporated parts of the negotiators’ demands.

[ 64 ] Perhaps most telling in this regard are the comments of the territorial negotiators and of the provisional government at the time. When the territorial negotiator Father Ritchot reported back to the provisional government at Red River in June 1870, following the passage of the Manitoba Act, 1870 by Parliament, he did not refer to an agreement regarding legislative bilingualism in the territories outside of Manitoba ( Manitoba Métis Federation Inc. v. Canada (Attorney General) , 2007 MBQB 293 , 223 Man. R. (2d) 42 (“ Manitoba Métis (2007)”), at para. 508 ).

Similarly, Judge Black, another one of the territorial negotiators, wrote in May 1870 that “the best report which I could possibly give on the subject” was the bill for the Manitoba Act, 1870 itself, “of which copies will, no doubt, be duly forwarded to Red River” (R.R., at p. 93; Manitoba Métis (2007), at para. 505). Moreover, while the provisional government approved the Manitoba Act, 1870 , there is no evidence that it approved the 1870 Order in a similar fashion.

All of this is consistent with the text of the two documents and inconsistent with the notion that legislative bilingualism was guaranteed for the annexed territories outside of Manitoba. [ 65 ] There is other important contemporary evidence to this effect. For instance, in a May 1870 telegram, Canadian Governor General John Young described the outcome of the Ottawa negotiations as follows: Negotiations with Delegates closed satisfactorily. A province named Manitoba erected, containing eleven thousand square miles.

Lieutenant-Governor appointed by Canada representative institutions Upper House seven, not exceeding twelve members . . . the rest of the territory the vast extent unsettled and unpeopled to be governed by the Lieutenant-Governor under instructions from the Canadian government. [Emphasis added.] ( Correspondence Relative to the Recent Disturbances in the Red River Settlement (1870) (“ Correspondence ”), at p. 131; Manitoba Métis (2007), at para. 123) In a subsequent telegram on May 12, 1870, Young wrote, in reference to the Manitoba Act, 1870 , that the “Bill for Government of North- West passed, sanctioning conditions agreed upon with Delegates.

Parliament prorogued to-day” ( Correspondence , at p. 161; Manitoba Métis (2007), at para. 138). [ 66 ] Federal negotiator George-Étienne Cartier was also of the view that the result of the negotiations was the Manitoba Act, 1870 ( Manitoba Métis (2007), at para. 509). [ 67 ] The appellants would have us dismiss this evidence on the basis that the provisional government and the negotiators purported to represent the entire population of the territories — not just the Red River Settlement.

Consequently, it could not have been the intention to negotiate for geographically specific language rights, and the Manitoba Act, 1870 cannot embody the end result of the wide-ranging compromise regarding bilingualism: Boutet, A.F., at paras. 46-49; Caron, A.F., at para. 64.

Adopting the same logic, our colleagues state that it is “implausible” that the Métis would have “abandon[ed]” the concerns of their kin who lived in the outlying regions by accepting legislative bilingualism in only a portion of the annexed territory: para. 211. [ 68 ] But there is overwhelming evidence that many of the settlers’ demands were not met. For instance, out of the Lists of Rights the settlers prepared, many of the demands were not reflected in either the Manitoba Act, 1870 or the 1870 Order .

For example, the entirety of Rupert’s Land and the North-Western Territory did not enter Canada as a province named Assiniboia, the bargain with the HBC over annexation was not annulled, and all future public infrastructure was not charged to the federal government. These had all been demanded, but were not obtained. [ 69 ] The appellants’ position overlooks the failure of the provisional government to have the entire territories enter Canada as a province.

Instead, the provisional government accepted a compromise whereby only a small portion of the territories — the province of Manitoba — would join the Dominion as a province, and the rest of the territories would be under Parliament’s jurisdiction. This is no small detail. Many of the demands contained in the Lists of Rights were tied to the creation of a province and the existence of a provincial legislature (demands such as voting rights, representation in the Canadian Senate and House of Commons, and the subsidy to the province in proportion to its population).

These demands were incorporated in the Manitoba Act , 1870 , but the population outside the newly created province received none of these rights.

For example, while Manitoba was represented by four members in the House of Commons, as demanded in the second and third Lists of Rights, the North-West Territories did not receive any seats until 1886: The North-West Territories Representation Act , 1886 , S.C. 1886, c. 24. [ 70 ] The fact is that by accepting the creation of the province of Manitoba plus the North-Western Territory, the representatives and negotiators did make sacrifices with respect to the outlying regions. Far from being implausible, this reflects the very essence of negotiations: making compromises to reach an agreement.

This is especially so in light of the fact that the representatives framed the demand as follows: “That the English and French languages be common in the Legislature . . . .” Like many other demands in the Lists of Rights, this was tied to the very first demand in the third List of Rights — namely, the demand for entry as a province, with the creation of a provincial legislature for the whole annexed territories. It thus follows that the agreement regarding bilingualism was entrenched in the Manitoba Act, 1870 , and not elsewhere.

(5) The 1867 Address Does Not Embody the Compromise Reached in 1870 [ 71 ] The appellants’ assertion that the 1870 Order embodies a wide-ranging historic compromise with regard to legislative bilingualism is further undermined by a chronological obstacle. The words “legal rights” or “ droits acquis ” / “ droits légaux ” relied upon by the appellants are found in the 1867 Address , incorporated as a

schedule to the 1870 Order . It would be incongruous for an 1867 document to embody a compromise reached only three years later in 1870. Rather, this tends to confirm that the end result of the negotiations was the Manitoba Act, 1870 — a bill adopted at the culmination of the negotiations. [ 72 ] To be sure, it is possible that parties to a negotiation could agree to give effect to an agreement by entrenching an older document. In the present case, however, this is implausible. The appellant Mr. Boutet’s assumption that the Imperial government could effectively entrench the compromise regarding legislative bilingualism reached in 1870 — by incorporating as a

schedule an 1867 document issue

[…]