MacDonald v. City of Montreal

MacDonald v. City of Montreal
Collection
Supreme Court Judgments
Date
1986-05-01
Report
[1986] 1 SCR 460
Case number
17528
Judges
Dickson, Robert George Brian; Beetz, Jean; Estey, Willard Zebedee; McIntyre, William Rogers; Lamer, Antonio; Wilson, Bertha; Le Dain, Gerald Eric
On appeal from
Quebec
Subjects
Appeal
Constitutional law
Notes
SCC Case Information: 17528
Decision Content
MacDonald v. City of Montreal, [1986] 1 S.C.R. 460
Duncan Cross MacDonald Appellant;
and
City of Montreal Respondent;
and
The Attorney General of Canada, the Attorney General of Quebec, the Société franco‑manitobaine and Alliance Quebec, Alliance for Language Communities in Quebec Interveners.
File No.: 17528.
1984: December 18, 19: 1986: May 1.
Present: Dickson C.J. and Beetz, Estey, McIntyre, Lamer, Wilson and Le Dain JJ.
on appeal from the court of appeal for quebec
Appeal ‑‑ Jurisdiction of Supreme Court of Canada ‑‑ Leave to appeal refused by Court of Appeal ‑‑ Whether leave to appeal to Supreme Court of Canada may be granted by the Supreme Court ‑‑ Supreme Court Act, R.S.C. 1970, c. S‑19, s. 41(1).
Constitutional law ‑‑ Language rights ‑‑ Court proceedings ‑‑ English‑speaking person in Quebec given summons for traffic violation in French only ‑‑ Whether summonses emanating from Quebec courts constitutionally valid if issued in one or other of the official languages ‑‑ Constitution Act, 1867, s. 133 .
Appearing before the Municipal Court of the City of Montréal to answer a charge of violating a municipal by‑law, appellant, an English‑speaking person, unsuccessfully challenged the jurisdiction of the court to proceed against him on the ground that the unilingual French summons issued by the court violated his fundamental rights as an English speaker under s. 133 of the Constitution Act, 1867 . In a trial de novo in the Superior Court, appellant was again convicted. The court concluded that documents such as summonses emanating from the province's courts must be considered constitutionally valid so long as they are issued in one or other of the French or English languages. The Court of Appeal refused to grant leave to appeal from the judgment of the Superior Court. This appeal raises two issues: (1) whether the Supreme Court has jurisdiction to hear a case for which leave to appeal to a provincial court of appeal was denied by the provincial court of appeal and (2) if so, whether the summons, being expressed in the French language only, and not in the language of the English‑speaking accused, offends the provisions of s. 133 of the Constitution Act, 1867 , resulting in a total absence of jurisdiction of the court to proceed against him.
Held (Wilson J. dissenting): The appeal should be dismissed.
(1) The Jurisdictional Issue
Per Beetz, Estey, McIntyre, Lamer and Le Dain JJ.: This Court has jurisdiction to hear this case. It is a jurisdiction which, for obvious reasons of policy and comity, should be exercised most sparingly, in very rare cases such as this one, where there is a risk that a question of major constitutional importance might otherwise be put beyond the possibility of review by this Court.
Per Dickson C.J. and Wilson J.: This Court has jurisdiction pursuant to s. 41(1) of the Supreme Court Act to review the Quebec Court of Appeal's decision not to grant leave to appeal from a judgment at trial. While the Court should in general maintain an attitude of deference to the exercise of judicial discretion by intermediate appellate courts, it should not hesitate, in light of the broad language of s. 41(1) and the role of the Court as the ultimate appellate tribunal, to interfere with discretionary decisions on those rare occasions when it perceives legal principles of national, and more particularly, constitutional significance to be at stake. To the extent that the Ernewein and Nicholson cases are inconsistent with this view, they should not be followed.
Cases Cited
By Beetz J.
Paul v. The Queen, [1960] S.C.R. 452; Walsh v. City of Montreal (1980), 55 C.C.C. (2d) 299 (Que. S.C.), application for leave to appeal refused, Mtl. C.A., November 10, 1980; Ernewein v. Minister of Employment and Immigration, [1980] 1 S.C.R. 639; Nicholson v. Haldimand‑Norfolk Regional Board of Commissioners of Police, [1981] 1 S.C.R. 92, referred to.
By Wilson J.
Ernewein v. Minister of Employment and Immigration, [1980] 1 S.C.R. 639; Nicholson v. Haldimand‑Norfolk Regional Board of Commissioners of Police, [1981] 1 S.C.R. 92, not followed; R. v. Gardiner, [1982] 2 S.C.R. 368; R. v. Joseph (1900), 6 C.C.C. 144; Walsh v. City of Montreal (1980), 55 C.C.C. (2d) 299 (Que. S.C.), application for leave to appeal refused, Mtl. C.A., November 10, 1980, referred to.
(2) The Constitutional Issue
Per Beetz, Estey, McIntyre, Lamer and Le Dain JJ.: The summons in French given to the English‑speaking appellant did not offend the provisions of s. 133 of the Constitution Act, 1867 . On the plain meaning of s. 133 , as construed by this Court in the two Blaikie cases, appellant has no right to be summoned before a court of Quebec by a process issued in his own language. The section provides that a process issued from a Quebec court may be in either of the official languages. If there is a right to use either language, there can be no obligation nor a duty to use the other. In judicial proceedings in the courts covered by s. 133 , the language rights protected are those of litigants, counsel, witnesses, judges and other judicial officers who actually speak, not those of parties or others who are spoken to; and they are those of the writers or issuers of written pleadings and processes, not those of the recipients or readers thereof. In the case at bar, there is therefore no doubt that the summons was valid. The Municipal Court of Montreal is a court of Quebec within the meaning of s. 133 and the summons‑‑clearly a document covered by the first Blaikie decision‑‑, considered as a command or as a charge, was a process issuing from such a court or under its authority. It may then be unilingual in either the French or the English language.
It may well be desirable or fair that summonses be bilingual to ensure comprehension by the recipient, but such a requirement is not imposed by the explicit provision of s. 133 . The section has not introduced a comprehensive scheme of official bilingualism but a limited form of compulsory bilingualism at the legislative level, combined with an even more limited form of optional unilingualism in Parliamentary debates and in judicial proceedings. This incomplete but precise scheme is a constitutional minimum which resulted from an historical compromise arrived at by the founding people who agreed upon the terms of the federal union. The scheme is couched in a language which is capable of containing necessary implications, which can be complemented by federal and provincial legislation, and it is a scheme which can be modified by way of constitutional amendment. But it is not open to the courts under the guise of interpretation, to improve upon, supplement or amend this historical constitutional compromise.
The requirements of natural justice and procedural fairness should not be invoked to construe s. 133 . These requirements protect not language rights but other rights which the section was never intended to safeguard and with which it is entirely unrelated. It is axiomatic that everyone has a common law right to a fair hearing, including the right to be informed of the case one has to meet and the right to make full answer and defence. Where the defendant cannot understand the proceedings because he is unable to understand the language in which they are being conducted, the effective exercise of these rights may well impose a consequential duty upon the court to provide adequate translation. But the right of the defendant to understand what is going on in court is not a language right but simply an aspect of the right to a fair hearing.
Per Dickson C.J.: The unilingual summons received by the appellant did not offend s. 133 of the Constitution Act, 1867 . The words of the section, as construed by this Court in the first Blaikie decision, empower the courts of Quebec to issue unilingual documents. Any implied affirmative obligation which may be cast upon the "State" to give effect to a litigant's right to use either French or English is necessarily subordinated to the express authority of courts to issue process in one language only. It is therefore unnecessary in the present case to consider the precise extent of the litigant's right to use either language in the judicial setting.
Per Wilson J., dissenting: The Municipal Court of the City of Montréal had no jurisdiction to proceed against the appellant on the basis of a summons which violated his linguistic rights under s. 133 of the Constitution Act, 1867 . The right conferred on a litigant by that section to use his own language in judicial proceedings imposes a correlative duty on the state to respect and accommodate that right. The words may/either in s. 133 in relation to the language of court proceedings were not employed in order to confer an option on the state to choose the official language in which it wishes to deal with a litigant but to confer an option on the citizen.
The legislative history of the pre‑1867 Acts from which s. 133 devolved demonstrates clearly that the focus of concern was meaningful access to the judicial system by users of both official languages. Section 133 reflects a similar concern. It recognizes the linguistic duality in the Province of Quebec and assures both French and English‑speaking citizens that their linguistic rights will be protected by the state in a meaningful fashion. The purpose of the section is to put the two official languages on an equal footing. It follows from this that the state's obligation is not satisfied if its courts and their documents speak in either French or English without regard to the language of the litigant. To fulfil its obligation, the state must deal with a litigant in the language he understands. Therefore, to comply with s. 133 , the initiating documents emanating from the court must, at a minimum, contain a directive to the recipient in the official language he understands alerting him to the importance of the document and advising him where to apply for a translation.
Cases Cited
By Beetz J.
Walsh v. City of Montreal (1980), 55 C.C.C. (2d) 299; Attorney General of Quebec v. Blaikie, [1979] 2 S.C.R. 1016; Attorney General of Quebec v. Blaikie, [1981] 1 S.C.R. 312, applied; Bilodeau v. Attorney General of Manitoba, [1981] 5 W.W.R. 393; Shaw v. City of Montreal (1982), 70 C.C.C. (2d) 19; Forest v. Registrar of Court of Appeal of Manitoba, [1977] 5 W.W.R. 347; Jones v. Attorney General of New Brunswick, [1975] 2 S.C.R. 182; Attorney General of Ontario v. Reale, [1975] 2 S.C.R. 624; Unterreiner v. The Queen (1980), 51 C.C.C. (2d) 373; Sadjade v. The Queen, [1983] 2 S.C.R. 361, referred to.
By Dickson C.J.
Attorney General of Quebec v. Blaikie, [1979] 2 S.C.R. 1016, applied.
By Wilson J. (dissenting)
Attorney General of Quebec v. Blaikie, [1981] 1 S.C.R. 312; Attorney General of Quebec v. Blaikie, [1979] 2 S.C.R. 1016; Nicholson v. Haldimand‑Norfolk Regional Board of Commissioners of Police, [1979] 1 S.C.R. 311; Hunter v. Southam Inc., [1984] 2 S.C.R. 145; Jones v. Attorney General of New Brunswick, [1975] 2 S.C.R. 182; Reference re Manitoba Language Rights, [1985] 1 S.C.R. 721; Holme v. Guy (1877), 5 Ch. D. 901; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; Veuillette v. The King (1919), 58 S.C.R. 414; R. v. Talon, Que. K.B., February 4, 1812, reported and discussed at (1945), 5 R. du B. 201; Minister of Home Affairs v. Fisher, [1979] 3 All E.R. 21; Walsh v. City of Montreal (1980), 55 C.C.C. (2d) 299; Bilodeau v. Attorney General of Manitoba, [1981] 5 W.W.R. 393; Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803); Attorney‑General for Ontario v. Attorney‑General for Canada, [1912] A.C. 571; Ridge v. Baldwin, [1964] A.C. 40; Forsythe v. The Queen, [1980] 2 S.C.R. 268; Re Potma and The Queen (1983), 2 C.C.C. (3d) 383; Mercure v. Attorney‑General of Saskatch­ewan, [1986] 2 W.W.R. 1.
Statutes and Regulations Cited
Act for the Division of the Province of Lower Canada, for Amending the Judicature thereof, and for Repealing Certain Laws Therein Mentioned, 1793 (L.C.), 34 Geo. 3, c. 6, s. 29.
Act for the establishment of a better Court of Appeals in Lower Canada, 1843 (Can.), 7 Vict., c. 18, ss. I, X.
Act respecting Jurors and Juries, 1864 (Can.), 27 & 28 Vict., c. 41, s. 7(2).
Act respecting Municipalities and Roads in Lower Canada, C.S.L.C. 1861, c. 24, ss. 5(17), 7(2), 27(14).
Act respecting the Constitution Act, 1982, 1982 (Que.), c. 21.
Act respecting the Court of Queen’s Bench, C.S.L.C. 1861, c. 77, s. 28.
Act respecting the ordinary Procedure in the Superior and Circuit Courts, C.S.L.C. 1861, c. 83, ss. 1, 2.
Act to amend the Act intituled, An Act to regulate the summoning of Jurors in Lower Canada, 1851 (Can.), 14 & 15 Vict., c. 89, ss. I, III, IV.
Act to amend the Law relative to the Administration of Justice in Lower Canada, 1846 (Can.), 9 Vict., c. 29, s. I.
Act to amend the Laws relative to the Courts of Original Civil Jurisdiction in Lower‑Canada, 1849 (Can.), 12 Vict., c. 38, ss. XIX, XCIV.
Act to establish a Superior Court of Civil and Criminal Jurisdiction, and to regulate the Court of Appeal, 1794 (U.C.), 34 Geo. 3, c. 2, s. IX [rep. 1822 (U.C.), 2 Geo. 4, c. 1].
Act to provide for the translation into the French Language of the Laws of this Province, and for other purposes connected therewith, 1841 (Can.), 4 & 5 Vict., c. 11, ss. I, II, III.
Act to repeal certain Acts and Ordinances therein mentioned, and to make better provision for the Administration of Justice in Lower Canada, 1843 (Can.), 7 Vict., c. 16, ss. XVIII, LIV.
Canadian Bill of Rights, R.S.C. 1970, App. III, s. 2(e), (g).
Canadian Charter of Rights and Freedoms, ss. 2 , 7 , 11 (a), 14 , 33 .
Charter of the city of Montreal, 1960, 1959‑60 (Que.), c. 102, ss. 1126 [repl. 1966‑67 (Que.), c. 86, s. 61; repl. 1971 (Que.), c. 96, s. 72; repl. 1977 (Que.), c. 77, s. 167], 1140 [repl. 1966‑67 (Que.), c. 86, s. 53; repl. 1971 (Que.), c. 96, s. 75; am. 1972 (Que.), c. 76, s. 20; repl. 1977 (Que.), c. 77, s. 170].
Constitution Act, 1867, ss. 91(27) , 92(14) , 133 .
Constitution Act, 1871, R.S.C. 1970, App. II, No. 11.
Constitution Act, 1982 .
Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 31(3) [rep. & subs. 1974‑75‑76 (Can.), c. 18, s. 9(2)].
Manitoba Act, 1870, R.S.C. 1970, App. II, No. 8, s. 23.
Municipal Code of the Province of Quebec, 1870 (Que.), c. 68, s. 224.
Official Languages Act, R.S.C. 1970, c. O‑2.
Ordinance to regulate the proceedings, in certain cases, in the Court of King’s Bench, and to give the subject the benefit of Appeal from Large Fines (1787), 27 Geo. 3, c. 1.
Ordinance to regulate the proceedings in the courts of civil judicature, and to establish Trials by Juries in actions of a commercial nature and personal wrongs to be compensated in damages (1785), 25 Geo. 3, c. 2 [rep. 1801 (L.C.), 41 Geo. 3, c. 7].
Supreme Court Act, R.S.C. 1970, c. S‑19, ss. 38, 39 [rep. & subs. R.S.C. 1970 (1st Supp.), c. 44, s. 2], 41 [rep. & subs. 1974‑75‑76 (Can.), c. 18, s. 5], 44.
Summary Convictions Act, R.S.Q. 1977, c. P‑15, s. 108.
Union Act, 1840, 1840 (U.K.), 3 & 4 Vict., c. 35 [reproduced R.S.C. 1970, App. II, No. 4].
Authors Cited
Austin on Jurisprudence, vol. 1, 5th ed. by R. Campbell, London, 1885.
Beaudoin, G.‑A. "Le décor historique et constitutionnel" (1983), 14 R.G.D. 227.
Bowker, W. F. "Basic Rights and Freedoms: What are they?" (1959), 37 Can. Bar Rev. 43.
Canada. Royal Commission on Bilingualism and Biculturalism, Studies No. 10, The Law of Languages in Canada, 1971.
Coode, G. On Legislative Expression, 2nd ed., 1852.
Driedger, E. A. Construction of Statutes, 2nd ed., Toronto, Butterworths, 1983.
Hart, H. L. A. "Definition and Theory in Jurisprudence" (1954), 70 L.Q.R. 37.
Hegel, G. W. Philosophy of Right, trans. by T.M. Knox, Oxford, Clarendon Press, 1942.
Hohfeld, W. N. Fundamental Legal Conceptions, ed. by W. W. Cook, New Haven, Yale University Press, 1923.
Jowitt's Dictionary of English Law, vol. 2, 2nd ed. by John Burke, London, Sweet & Maxwell Ltd., 1977, "process".
Lederman, W. R. "The Nature and Problems of a Bill of Rights" (1959), 37 Can. Bar Rev. 4.
Marx, H. "Language Rights in the Canadian Constitution" (1967), 2 R.J.T. 239.
Nantel, M. "La langue française au Palais" (1945), 5 R. du B. 201.
Ontario. Royal Commission Inquiry into Civil Rights, Queen's Printer, 1968.
Salmond on Jurisprudence, 11th ed. by G. Williams, London, Sweet & Maxwell Ltd., 1957.
Stone J. The Province and Function of Law, Sydney, Associated General Publications Pty. Ltd., 1946.
Tremblay, A. "The Language Rights (Ss. 16 to 23)" in W. Tarnopolsky and G.‑A. Beaudoin eds., The Canadian Charter of Rights and Freedoms : Commentary, Toronto, Carswells, 1982.
Weiler, P. "Rights and Judges in a Democracy: A New Canadian Version" (1984), 18 U. Mich. J.L. Ref. 51.
APPEAL from a refusal of the Quebec Court of Appeal to grant leave to appeal from a judgment of the Superior Court, [1982] C.S. 998. Appeal dismissed, Wilson J. dissenting.
Walter J. Roustan and Henry S. Brown, for the appellant.
Neuville Lacroix, for the respondent.
Joseph Eliot Magnet, for the intervener the Société franco‑manitobaine.
Stephen A. Scott, for the intervener Alliance Quebec, Alliance for Language Communities in Quebec.
James M. Mabbutt, for the intervener the Attorney General of Canada.
Réal‑A. Forest and Lucie Angers, for the intervener the Attorney General of Quebec.
The following are the reasons delivered by
1. The Chief Justice‑‑I agree with Wilson J. as to the jurisdiction of this Court to entertain an appeal from the refusal of leave to appeal by an intermediate appellate court.
2. I concur in the conclusion of my colleague, Beetz J., that the unilingual summons received by the appellant does not offend s. 133 of the Constitution Act, 1867 .
3. The relevant portion of s. 133 reads as follows:
... 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.
(Emphasis added.)
4. These words empower the courts to issue unilingual documents: Attorney General of Quebec v. Blaikie, [1979] 2 S.C.R. 1016, at p. 1030. Any implied affirmative obligation which may be cast upon the "state" to give effect to a litigant's right to use either French or English is necessarily subordinated to the express authority of courts to issue process in one language only. It is therefore unnecessary in the present case to consider the precise extent of the litigant's right to use either language in the judicial setting; and I refrain from doing so.
5. I would accordingly dismiss the appeal with costs.
The judgment of Beetz, Estey, McIntyre, Lamer and Le Dain JJ. was delivered by
Beetz J.‑‑
I‑‑Introduction
6. The constitutional question stated in this case by Ritchie J. reads as follows:
Does a summons which is printed and published in the French language only and commands an English speaking person to appear before the Courts of Quebec offend the provisions of s. 133 of the Constitution Act, 1867 , resulting in a total absence of jurisdiction of the Court to proceed against him?
7. The wording of this question will be commented upon later.
8. Section 133 of the Constitution Act, 1867 , provides:
133. Either the English or the French Language may be used by any Person in the Debates of the Houses of the Parliament of Canada and of the Houses of the Legislature of Quebec; and both those Languages shall be used in the respective Records and Journals of those Houses; and either of those Languages may be used by any Person or in any Pleading or Process in or issuing from any Court of Canada established under this Act, and in or from all or any of the Courts of Quebec.
The Acts of the Parliament of Canada and of the Legislature of Quebec shall be printed and published in both those Languages.
II‑‑The Facts and the Proceedings
9. The facts are straightforward and apparently undisputed, although the manner in which the case reached this Court is unusual.
10. By summons dated February 25, 1981, issued from the Municipal Court of the City of Montréal, the appellant was summoned to appear before that court on a given date to answer a charge of speeding contrary to a by‑law of the City.
11. On one side, the document bears the title "Assignation" and, inter alia, the style of cause, "Ville de Montréal vs Macdonald, Cross Duncan" as well as the date set for appearance.
12. The other side is as follows in its most important parts:
canada cour municipale de la ville de montréal
province de québec
attendu qu’à Montréal, à la date précitée, étant le responsable du véhicule ci-dessus décrit, vous avez
enfreint
le règlement 1319 (41-a), en conduisant à une vitesse excédant 50 km/h, à savoir, 0084 km/h.
près de bl ste anne st jacques de 13:00 à 00:84
à ces causes, nous vous ordonnons, au nom de Sa Majesté, de comparaître devant la Cour municipale de la Ville de Montréal, 775, rue Gosford, à la date fixée pour votre comparution, soit à 10 heures, soit à 15 heures, pour répondre à cette inculpationet être ultérieurement traité suivant la loi.
Donné à Montréal, ce jour, sous ma signature.
Greffier
sommation
13. This side bears the signature of the Clerk of the Municipal Court.
14. The parts which are not underlined are printed, leaving blanks which, in the underlined parts have been filled by typing or similar mechanical means associated perhaps with a word processor.
15. It can be noted that this summons in all its parts is exclusively in the French language.
16. According to his factum, the appellant secured an English translation, entered a plea of not guilty and ultimately proceeded at trial without the benefit of counsel before Judge Maurice Bourassa of the Municipal Court of the City of Montréal.
17. According to Judge Bourassa, the charge was clearly established by a police constable and the appellant, who testified, confessed to having exceeded the speed limit. The appellant's sole defence, which he argued in English, orally as well as in writing, was an argument in law challenging the jurisdiction of the court to proceed against him in that the complaint or summons was not made in English and violated his fundamental rights as an English speaking person under s. 133 of the Constitution Act, 1867 .
18. In a written judgment dated March 24, 1982, Judge Bourassa dismissed appellant's challenge to his jurisdiction and convicted him as charged, imposing a fine of $30 plus costs or three days in jail.
19. The appellant retained counsel and appealed to the Superior Court by way of trial de novo. The appeal was heard on September 30, 1982 by Meyer J. who, upon completion of argument, delivered an oral judgment whereby he dismissed the appellant's appeal and affirmed his conviction: MacDonald c. Ville de Montréal, [1982] C.S. 998.
20. The appellant sought leave to appeal to the Quebec Court of Appeal pursuant to s. 108 of the Summary Convictions Act, R.S.Q. 1977, c. P‑15:
108. An appeal lies to the Court of Appeal, with leave of that court or of a judge of that court, from any judgment of the Superior Court rendered under the authority of this act, if the party making the application shows a sufficient interest to warrant decision on a question of law only.
21. In a written endorsement dated December 3, 1982, McCarthy J.A. dismissed appellant's application for leave to appeal, without recorded reasons.
22. Thereupon, the appellant sought leave to appeal to this Court from the decision of McCarthy J.A.
23. The appellant's application was first heard on March 21, 1983, by a panel of three members of this Court. At the time, the specific constitutional issue raised in the case at bar had never been considered by this Court on the merits. However, on November 16, 1981, another panel of three members of this Court had granted applicant Roger Joseph Albert Bilodeau leave to appeal from a judgment of the Manitoba Court of Appeal, Bilodeau v. Attorney General of Manitoba, [1981] 5 W.W.R. 393. The Bilodeau case, in which judgment is being delivered to‑day, had reached the Court of Appeal by way of stated case. One of the questions for determination in that case was whether s. 23 of the Manitoba Act, 1870, which corresponds with and is almost identical to s. 133 of the Constitution Act, 1867 , was manda‑ tory or directory and whether or not two Manitoba statutes enacted in the English language only were valid; the other question was similar to the one raised in the case at bar: it related to the validity of a speeding charge summons issued in the English language only to a French‑speaking accused. In the Bilodeau case, leave to appeal to this Court had been granted at large, [1981] 2 S.C.R. vi.
24. In the course of the hearing of the application for leave to appeal in the case at bar, members of the panel who heard the application pointed to the problem raised by Ernewein v. Minister of Employment and Immigration, [1980] 1 S.C.R. 639, and Nicholson v. Haldimand‑Norfolk Regional Board of Commissioners of Police, [1981] 1 S.C.R. 92. The problem was seemingly a jurisdictional one as it appeared in Ernewein where the appeal had not been merely dismissed but quashed after leave to appeal from a decision of the Federal Court of Appeal refusing leave to appeal to itself had been granted by three members of this Court. The three members of the panel who first heard the application for leave to appeal in the case at bar were asked to disregard this jurisdictional problem. They referred the application to the Court. It was heard on April 27, 1983 and, on May 17, 1983, a seven member Court presided by Laskin C.J.C. granted leave to appeal from the decision of McCarthy J.A., [1983] 1 S.C.R. x.
25. It can safely be assumed that the reasons why leave was granted in the case at bar were that it had been granted in Bilodeau on a similar issue and also that the Court wanted an opportunity to reconsider Ernewein and Nicholson.
26. Of the four interveners, the Attorney General of Canada and the Attorney General of Quebec supported the respondent, whereas the Société franco‑manitobaine and Alliance Québec, Alliance for Language Communities of Quebec supported the appellant.
III‑‑The Judgments of the Courts Below
27. After stating the facts and the sole question of law arising in the case, Judge Bourassa of the Municipal Court of the City of Montréal, wrote that the same question had been resolved against the accused by Judge Tourangeau of the same court in the unreported case of Ville de Montréal v. Walsh, No. 085 042 635. Judge Bourassa quoted certain passages of the reasons of Judge Tourangeau and noted that the latter's judgment had been affirmed in appeal by Huges­sen A.C.J. as he then was. Judge Bourassa then followed the judgment of Hugessen A.C.J., after quoting the latter's reasons in extenso, as if they were his own for all practical purposes.
28. The reasons of Hugessen A.C.J. have been reported: Walsh v. City of Montreal (1980), 55 C.C.C. (2d) 299. But they are relatively short and, for convenience, I quote them here in part:
On August 27, 1979, Merrick Walsh went through a stop sign within the limits of the City of Montreal. He was in breach of a municipal by‑law. He was observed by a police officer who stopped him and gave him a traffic ticket. The ticket was in the French language. He did not, as he might have done, pay the amount indicated on the face of the ticket. In due course, on December 14, 1979, a summons was issued out of the Municipal Court. It was returnable February 26, 1980. The summons was also in the French language except for the part describing the offence, which was written in both French and English.
Before the Municipal Court, Mr. Walsh, through counsel, made a motion to quash the summons on the grounds that it was in French only. By judgment dated May 16, 1980, the municipal Judge dismissed the motion. On June 20, 1980, the trial took place in Municipal Court and Mr. Walsh was convicted. He now appeals to this Court and renews his contention that the summons is illegal and should be quashed. He admits, however, the facts relating to the original breach of the by‑law, so that these are no longer in issue. Thus, if the argument relating to the validity of the summons is not accepted, the appeal must be dismissed and the conviction affirmed.
The argument, as I understand it, turns on s. 133 of The British North America Act, 1867.
29. Hugessen A.C.J. quoted s. 133 and continued:
It is clear that the Municipal Court of Montreal is a Court of Quebec within the meaning of the section. It is equally clear that the summons addressed to Mr. Walsh is a process issuing from such Court. Mr. Walsh claims that being English‑speaking he has the right to receive process in English or, at the very least, in both English and French.
The argument is untenable. Section 133 does not want for clarity. In certain cases (the records and journals of Parliament and the Legislature, and the statutes passed by those bodies), the use of both English and French is obligatory. The word used is "shall". In other cases (debates in Parliament and the Legislature, and proceedings in federal and Québec Courts), there is a choice of either one or the other of the two languages. The word used is "may".
If there is a right to use either language, there can be no obligation to use the other. Still less can there be an obligation to use both.
It was suggested in argument that the right to use either language in pleading or process must apply as much to the person receiving, the reader or listener, as to the person transmitting, the writer, speaker or issuer. Such an interpretation is not possible for it makes a nonsense of the words used. Obviously if the recipient of a pleading or process has the right to choose which of the two languages it shall be in, the issuer loses his right to make use of either language. The hardship that would be worked on pleaders in civil cases is obvious, for every pleading would have to be made in both languages in order to satisfy the rights of the other party...
In the case of parliamentary debates, where the essential words of the text are identical ("either ... may be used by any Person"), it is clear that the rights preserved are those of the speaker only. The situation cannot be different for Court proceedings.
I would add that the present case is not concerned with Mr. Walsh's right to have his trial in English. If and when that right is denied, it will be dealt with in another case. Our only concern, here, is with the language of the initiating summons. That language may be either English or French.
The conclusion I have reached is imposed not only by the clear text of Section 133 but also by the most recent pronouncement of the Supreme Court of Canada on the subject. In A.‑G. Qué. v. Blaikie et al., (1979), 49 C.C.C. (2d) 359, 101 D.L.R. (3d) 394, [1979] 2 S.C.R. 1016 it was said, speaking of Quebec courts (at p. 369 C.C.C., p. 1030 S.C.R.): "... documents emanating from such bodies or issued in their name or under their authority may be in either language, and this option extends to the issuing and publication of judgments or other orders".
There is nothing more that I need say.
30. Mr. Walsh sought leave to appeal to the Quebec Court of Appeal. His application was dismissed by Montgomery, Paré and McCarthy JJ.A. in an unreported written endorsement dated November 10, 1980 which reads:
[TRANSLATION] Application dismissed with costs fixed at $50.00, the whole for the reasons given by Hugessen C.J.
(Signed) G.H. Montgomery J.C.A.
31. Thus, the Quebec Court of Appeal unanimously adopted the reasons of Hugessen A.C.J. on the merits, although they did so on an application for leave to appeal.
32. I also find convenient to quote most of the reasons of Meyer J. in the case at bar. At pages 999 and 1000 he wrote:
The appellant does not contest the facts, which are admitted. His appeal is based on one ground only, namely, that the summons which was issued to the appellant to appear and plead and answer to the charge in this case, was drafted unilingually in the French language, and that he, as an English‑speaking person, is entitled to have a summons drafted in his language, under the provisions of the Canadian Constitution, and in particular in virtue of Section 133 of the British North America Act, 1867 (now called the Constitution Act, 1867).
...
This is not the first time that this matter has come before the courts. In P.G. du Québec c. Blaikie, (1979) 2 S.C.R. 1016, the Supreme Court of Canada stated clearly that Section 133 provided to all persons an option to use either the French or the English language before the courts of Quebec or its other tribunals, and that documents emanating from such courts or tribunals or issued in their name or under their authority may be in either language, this option extending to the issuing and publication of judgments or other orders. The wording of the Supreme Court's decision distinguishes clearly between the option given to persons to use either language orally or in their written documents and pleadings, and, on the other hand, documents emanating from courts or tribunals themselves or issued in their name or under their authority, which may also be in either the French or the English language. This decision flowed directly from the wording of Section 133 which states clearly that "... 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 ...".
These words in Section 133 clearly mean, inter alia, that either the French or the English language may be used (1) by any person appearing or pleading or participating in any way whatsoever in or before any court of Quebec, and (2) in any pleading or process in or issuing from any court of the Province of Quebec.
The undersigned is therefore of the view that whether a "person" does or does not (as suggested by appellant) include the Crown, the prosecution, the state, or the court itself, is irrelevant. This is because the Act clearly provides, as an entirely separate rule, that in any pleading or process in or issuing from any court of Quebec, either the French or the English language may be used (whether by a "person" or not), while additionally it is provided that either the French or the English language may be used by any person in any Quebec court.
...
The Blaikie case referred to is also clearly permissive insofar as the court itself is concerned, and allows the court or tribunal to use either language, at its choice, in documents emanating from it, or in documents issued in its name or under its authority, which documents may be in either language.
...
It may well be desirable or fair that traffic tickets or summonses should be bilingual, to ensure comprehension by the recipient insofar as this is possible, but in my view it is not required by our law. A judge, for example, may issue a unilingual judgment in the English or the French language, even if all of the parties appearing before him are unable to understand the judgment which he has rendered, and the same reasoning would apply to a unilingual traffic ticket or summons. Summonses and complaints are clearly among the documents covered by the first Blaikie decision. The summons in the present case either emanates from the Municipal Court of Montreal or was issued in the name of the Municipal Court or under its authority, and it may thus be unilingual in either the French or the English language.
33. Meyer J. then noted that Hugessen A.C.J. had reached the same conclusion on the same question in the Walsh case, as well as Boilard J. in Shaw v. City of Montreal (1982), 70 C.C.C. (2d) 19, and he dismissed the appeal.
34. Shaw also had to do with a Montréal Municipal Court traffic summons drafted in the French language only and addressed to an English‑speaking accused. Boilard J. quoted s. 133 of the Constitution Act, 1867 and some of the reasons of Huges­sen A.C.J. in Walsh and, in his oral reasons reported at p. 22, he said:
Process issued from a court in the Province of Quebec may be in either one of the official languages no matter what language is spoken by the person to whom it is intended.
35. He then reached his conclusions dismissing the appeal.
IV‑‑Summary of the Appellant's Submission on the Merits
36. The appellant's main submission can be formulated as follows:
Section 133 of the Constitution Act, 1867 which reads in part
"and either of those Languages may be used by any Person or..."
vests fundamental language rights in the Person to the exclusion of the State and imposes a correlative duty on the State to respect a Person's choice of language in a summons.
37. In addition, the appellant made what I would call a preliminary submission relating to the nature of the summons, and he supported his main submission with what I would term ancillary submissions relating inter alia to a) historical analysis with respect to s. 133 ; b) the nature of language as a means of communication and c) procedural fairness and natural justice.
38. The appellant's counsel would not necessarily characterize his submissions in this manner, nor did he present them in the order indicated above. I simply find this way of stating them to be more in harmony with my understanding of his position.
V‑‑The Nature of the Summons
39. Before I consider the preliminary submission made by the appellant, I find it necessary to clarify some of the confusion which seems to have arisen in the case at bar with respect to the true nature of the instrument labelled a "summons" and described above in detail.
40. This confusion is perhaps understandable, given the simplified procedure that the Charter of the city of Montreal, 1960, 1959‑60 (Que.), c. 102, as amended, provides for the prosecution of certain offences, by contrast with the more traditional procedure prescribed for instance by the Summary Convictions Act, supra, and similar legislation. Under such traditional legislation, while a summons usually states the complaint or charge or a summary thereof, there is a distinction between the two, conceptually as well as physically. A complaint or charge is a statement accusing a person of an offence and upon which the accused person will be tried, whereas a summons in a criminal or penal case is a command ordering the accused to appear in court on a given date to answer a given charge or complaint. Furthermore, a charge and a summons are usually found in two separate and distinct instruments.
41. Not so, or not necessarily so, in the City of Montréal under the City Charter, as in many other jurisdictions nowadays. Thus, in its fourth and fifth paragraphs, s. 1140 of the City Charter, as it read at the relevant time, provided as follows:
With respect to the issue of a writ of summons for a violation of any act or by‑law relating to traffic, public safety or the use of a motor vehicle or of any accessory to such a vehicle, the filing of a complaint is not required and the writ may be issued on information supplied in the manner determined by the chief attorney and approved by the executive committee.
If the offender who has received a notice of summons or a summons does not avail himself of the provisions governing full payment, proceedings shall be continued and he shall appear in court on the date mentioned. If he does not appear, the judge or the clerk under the authority of the chief judge may condemn him for the violation described in th