R. v. Mercure

R. v. Mercure
Collection
Supreme Court Judgments
Date
1988-02-25
Report
[1988] 1 SCR 234
Case number
19688
Judges
Dickson, Robert George Brian; Beetz, Jean; Estey, Willard Zebedee; McIntyre, William Rogers; Chouinard, Julien; Lamer, Antonio; Wilson, Bertha; Le Dain, Gerald Eric; La Forest, Gérard V.
On appeal from
Saskatchewan
Subjects
Constitutional law
Criminal law
Notes
SCC Case Information: 19688
Decision Content
Supreme Court of Canada
R. v. Mercure, [1988] 1 S.C.R. 234
Date: 1988-02-25
André Mercure Appellant
v.
The Attorney General for Saskatchewan Respondent
and
The Fédération des francophones hors Québec, the Association canadienne-française de l'Alberta and the Association culturelle franco-canadienne de la Saskatchewan Interveners (principal parties)
and
The Attorney General for Alberta Intervener
and
Freedom of Choice Movement Intervener
INDEXED AS: R. V. MERCURE
File No.: 19688.
1986: November 26, 27; 1988: February 25.
Present: Dickson C.J. and Beetz, Estey, McIntyre, Chouinard, Lamer, Wilson, Le Dain and La Forest JJ.
Chouinard J. took no part in the judgment.
ON APPEAL FROM THE COURT OF APPEAL FOR SASKATCHEWAN
Constitutional law — Continuance of laws — Saskatchewan Act — Language rights — Legislature and courts of Saskatchewan — Whether s. 110 of The North-West Territories Act continued to apply to Saskatchewan by virtue of the Saskatchewan Act — Saskatchewan Act, S.C. 1905, c. 42, ss. 14, 16.
Constitutional law — Amendment of provincial constitution — Language rights — Legislature and courts of Saskatchewan — Whether rights derived from s. 110 of The North-West Territories Act can be modified unilaterally by Saskatchewan — Saskatchewan Act, S.C. 1905, c. 42, s. 16 — Constitution Act, 1982, s. 45 .
Constitutional law — Language rights — Saskatchewan statutes — Whether s. 110 of The North-West Territories Act requires Saskatchewan Legislature to publish its laws in English and in French — Saskatchewan Act, S.C. 1905, c. 42, ss. 14, 16.
Constitutional law — Language rights — Saskatchewan courts — Provincial offence — Whether accused has a right to use the French language in proceedings before the Saskatchewan courts — Content of right — The North-West Territories Act, R.S.C. 1886, c. 50, s. 110 (am. S.C. 1891, c, 22, s. 18) — Saskatchewan Act, S.C. 1905, c. 42, s. 16.
Criminal law — Provincial offence — Trial — Saskatchewan courts — Whether accused has a right to use the French language in proceedings before the Saskatchewan courts — Content of right — The North-West Territories Act, R.S.C. 1886, c. 50, s. 110 (am. S.C. 1891, c. 22, s. 18) — Saskatchewan Act, S.C. 1905, c. 42, s. 16.
Appellant, charged with speeding under the Saskatchewan Vehicles Act, made an application in the Provincial Court to enter a plea in French, to have his trial proceeded with in that language, and to have the hearing delayed until the relevant provincial statutes could be produced in French. The application was based on s. 110 of The North-West Territories Act which provides that "Either the English or the French language may be used by any person in the debates of the Legislative Assembly of the Territories and in the proceedings before the courts; … and all ordinances made under the Act shall be printed in both those languages… ." Appellant maintained that this provision still applies to the courts and the Legislature of Saskatchewan by virtue of s. 16 of the Saskatchewan Act. The Provincial Court judge denied appellant's application. He held that s. 110 of The North-West Territories Act was applicable to the Saskatchewan courts and entitled appellant to use the French language before the Provincial Court and to be provided with an interpreter. But he also held that appellant was not entitled to be provided with statutes printed in French because the requirement in s. 110 regarding the publication of laws was in terms restricted to the Territorial Assembly and had no application to the Saskatchewan Legislature. When asked to enter a plea, appellant indicated that he wished to stand mute. The trial judge entered a plea of not guilty and the trial was conducted entirely in English. No interpreter was present because appellant took the position that having an interpreter did not comply with s. 110 and that he could not defend himself without access to the relevant statutes printed in French. Appel- lant was convicted and his appeal by way of stated case to the Court of Appeal was dismissed.
Held (Estey and McIntyre JJ. dissenting): The appeal should be allowed.
Per Dickson C.J. and Beetz, Lamer, Wilson, Le Dain and La Forest JJ.: Parliament, in establishing the province of Saskatchewan out of the North-West Territories, provided under s. 16 of the Saskatchewan Act for the general continuation of pre-existing laws except in so far as those laws were inconsistent with the Saskatchewan Act, or in so far as the Act contained provisions as a substitute therefor. Since Parliament did not expect these laws to continue forever, it empowered the appropriate legislature, in accordance with the division of legislative power, to repeal or amend such laws. Section 110 of The North-West Territories Act was a law existing at the establishment of the province. Since no provision of the Saskatchewan Act was inconsistent with s. 110 or was intended as a substitute for it, and since there was no amendment of the provisions of that section with respect to the language of the statutes and of the proceedings in the courts, it follows that s. 110 continues in effect for that purpose and that the statutes of Saskatchewan must be enacted, printed and published in English and French and that both languages may be used in the Saskatchewan courts.
The view that s. 16 did not operate to continue the provisions of s. 110 relating to the Territorial Assembly involves a misunderstanding of the nature of provisions for the continuation of laws. In according rights to persons to speak English or French in the North-West Territories in 1877, the legislation necessarily had to be addressed to the then existing institutions—the Territorial Assembly and courts. To continue the laws establishing these rights, which s. 16 generally purports to do, it was obviously necessary to apply them to the successor institutions. In any event, the broad wording used in s. 14 of the Saskatchewan Act was intended to cover in a general and comprehensive way the laws governing the operation of the legislature. Thus the Saskatchewan Act, either by virtue of s. 14 alone or read in conjunction with s. 16, provided for the continuance of all laws governing the legislature that were not inconsistent with the Act. The English language did not become the language of the courts of the North-West Territories, and later of the Saskatchewan courts, by virtue of the English statute of 1731, which prescribed that all proceedings in the courts be in English only. The 1886 amendment to The North-West Territories Act providing for the reception date of English law as of 1870 never had the effect of incorporating this statute as part of the law of the Territories because any existing law on the language of the courts was impliedly repealed by s. 110 which fully covered the subject-matter. There was, therefore, no law regarding the language of the courts to be continued in Saskatchewan other than s. 110. The section was not repealed as no mention whatsoever was made of language in the various Acts that restructured the Saskatchewan judicial system. In particular, s. 110 was not impliedly repealed merely because certain rules of court and court forms were written on the assumption that the judicial system would operate in English.
While s. 110 governs procedural matters, it does not serve merely procedural ends. It embodies procedural rules that give rights to individuals. The courts have treated laws giving expression to human rights as being of an almost constitutional nature. Repeal of such laws requires "clear legislative pronouncement". Language rights are a well-known species of human rights and should be approached accordingly.
Section 110 was not entrenched after the Saskatchewan Act was passed. The express words of ss. 14 and 16(1) of the Saskatchewan Act clearly provide that the laws continued under the Act are subject to repeal by the appropriate legislature. Not only is the province empowered to legislate respecting procedure in the courts under s. 92(14) of the Constitution Act, 1867 , it is also given power to amend its constitution under s. 45 of the Constitution Act, 1982 .
The language rights accorded by s. 110 of The North-West Territories Act are substantially the same as those accorded under s. 133 of the Constitution Act, 1867 , s. 23 of the Manitoba Act, 1870 and ss. 16 to 18 of the Canadian Charter of Rights and Freedoms . Under s. 110, an accused is constitutionally entitled to speak French before the courts in Saskatchewan, but has no right to be understood in that language. The judge and all court officials can use English or French as they wish, both in oral and in written communication. The accused has no right to a translator, except as required for a fair trial either at common law or under ss. 7 and 14 of the Charter . The right to be understood is not a language right but one arising out of the requirements of due process. Finally, when proceedings are required by law to be recorded, a person using one or the other official language has the right to have his remarks recorded in that language. Accordingly, in this case, appellant was entitled to use French in the Provincial Court, but he could not require the others to do so. As there was no evidence to indicate that he needed the services of a translator to understand the proceedings, a fair trial could be conducted without making a translation available from English to French.
As to appellant's request that a French version of the relevant statutes be produced, it was obvious that he sought valid statutes, not mere unofficial translations. The statutes of Saskatchewan must, by virtue of the province's constituent statute, the Saskatchewan Act, be enacted, printed and published in English and French. Since the statutes of Saskatchewan were not enacted in the manner and form required by its constituent statute, it follows that they are invalid. The principle of the rule of law and the de facto doctrine, however, will keep the existing laws temporarily in effect for the minimum time necessary for the statutes to be translated, re-enacted, printed and published in French or for the legislature to amend its constitution by enacting a bilingual statute removing the restrictions imposed on it by s. 110 and then declaring all existing laws valid notwithstanding that they were enacted, printed and published in English only. The principle of the rule of law would have also preserved the enforceability of appellant's conviction. But, in this case, the trial judge's failure to comply with appellant's request to have his plea entered in French vitiated the trial. He sought to use French, and had a right to have his plea entered in that language. His subsequent refusal to enter a plea was consequential to this. The conviction should be quashed.
Per Estey and McIntyre JJ. (dissenting): Parliament made provision in the Saskatchewan Act for a new legislature and courts in the new province. In doing so, Parliament, pursuant to s. 16(1) of the Act, incorporated by reference the laws of the North-West Territo- ries into the laws of Saskatchewan except where the Territories' laws were inconsistent with the Act or where there was a substitute in the Act. Parliament, in so exercising its authority under the Constitution Act, 1871, refrained from establishing any language rights in the new province. Indeed, unlike the situation resulting from the presence of s. 23 in the Manitoba Act, 1870, there was no constitutional impediment or restriction on the exercise by the new province of its free legislative will under s. 92 of the Constitution Act, 1867 as regards the use of language in the legislature and the courts. In these circumstances, it would be unusual to find that s. 110 of The North-West Territories Act was introduced into the Constitution of Saskatchewan by an indirect and convoluted process so as to achieve the Manitoba result.
Section 16(1) of the Saskatchewan Act did not incorporate s. 110 into the laws of Saskatchewan. Section 3 of the Saskatchewan Act provided that the "provisions of the Constitution Acts, 1867 to 1886 shall apply to the province of Saskatchewan", except the provisions, like s. 133 of the Constitution Act, 1867 , which are "specially applicable to … one or more and not the whole of the said provinces". Section 3 gave the new province full plenary powers to establish its courts and legislature as it saw fit, free from the restrictions in s. 133 . Section 16(1) of the Saskatchewan Act could not therefore indirectly repeal s. 3 by requiring the new legislature established in Saskatchewan to operate under the regime of s. 133 .
Further, the courts established in Saskatchewan by Parliament acting under s. 2 of the Constitution Act, 1871 were substitutes for the courts described in the laws of the North-West Territories and accordingly those laws relating to courts of the Territories were not, by the terms of s. 16(1), brought into the new province. These new 'courts of Saskatchewan' were put in place to carry on a function under s. 92(14) of the Constitution Act, 1867 . Section 110 , which was either a precautionary recognition of s. 133 of the Constitution Act, 1867 or a part of the federal administration of those territories lying outside any province under s. 4 of the Constitution Act, 1871, was never intended to apply to courts not within federal jurisdiction. It follows that s. 110 was only intended to apply to the courts of the North-West Territories and to no successor courts. It also follows that the provisions in that section relating to the printing of laws in French applied only to the Legislative Assembly of the North-West Territories. The Legisla- ture of Saskatchewan established by ss. 12 to 15 of the Saskatchewan Act was a completely new institution and the laws relating thereto were in substitution for the laws relating to the legislature in the North-West Territories prior to 1905. This conclusion is supported by s. 14 of the Saskatchewan Act which provides that the laws of the North-West Territories relating to the "constitution" and the "election of members" of the Legislature of the North-West Territories shall apply to the Legislative Assembly of Saskatchewan. This section would be unnecessary if s. 16(1) of the Saskatchewan Act carried forward all the laws of the North-West Territories, including s. 110, into Saskatchewan. Also, section 14 did not incorporate s. 110 into the laws of Saskatchewan for s. 110 was not a provision of a North-West Territories' law relating to the "constitution" of the Legislature of the Territories.
By the terms of s. 16(1) itself, s. 110 did not qualify for incorporation by reference into the laws of the new province. As there was nothing in the Saskatchewan Act addressing the use of language in the province's courts or legislature, the exclusive provincial legislative sovereignty under the Constitution remained untrammelled by any provisions of the Saskatchewan Act. The application of s. 110 would be a curtailment of the institutions created and the authority granted to the legislature of the new province by the Saskatchewan Act and, accordingly, was inconsistent with the Act.
In short, the language guarantees found in s. 110 were specific to the Legislature and the courts of the North-West Territories. Saskatchewan, like all provinces, acquired the power to establish its institutions when it was created, including the power to specify the language to be used in their proceedings. Section 110 of The North-West Territories Act cannot reasonably be read as having the effect of altering by inference the constitutional division of powers provided for in both the Constitution Act, 1867 and the Saskatchewan Act.
Finally, even assuming that s. 110 was incorporated into the laws of Saskatchewan, the section would still have no application to the proceedings of that province's courts and legislature. Indeed, if s. 110 became part of Saskatchewan law, it did so instantaneously with the termination of the existence of the only two institutions to which it applied. The Legislature of the North-West Territories was replaced under s. 12 of the Saskatche- wan Act and the courts were replaced under s. 16 of the same Act. Thus section 110 became simultaneously spent as regards the legislature and the courts of Saskatchewan with its introduction into Saskatchewan law. Furthermore, Parliament also simultaneously "disestablished" the Supreme Court of the North-West Territories even as it applied to the Territories.
Cases Cited
By La Forest J.
Overturned: Strachan v. Lamont (1906), 4 W.L.R. 411; applied: MacDonald v. City of Montreal, [1986] 1 S.C.R. 460; Société des Acadiens du Nouveau-Brunswick Inc. v. Association of Parents for Fairness in Education, [1986] 1 S.C.R. 549; Attorney General of Quebec v. Blaikie, [1979] 2 S.C.R. 1016; Reference re Manitoba Language Rights, [1985] 1 S.C.R. 721; referred to: Bilodeau v. Attorney General of Manitoba, [1986] 1 S.C.R. 449; R. v. Lefebvre (1982), 21 Alta. L.R. (2d) 65 (Q.B.), aff'd (1986), 48 Alta. L.R. (2d) 124 (C.A.); Jones v. Attorney General of New Brunswick, [1975] 2 S.C.R. 182; R. v. Tremblay (1985), 20 C.C.C. (3d) 454; Paquette v. R. in Right of Canada (1985), 40 Alta. L.R. (2d) 38 (Q.B.), aff'd (1987), 55 Alta. L.R. (2d) 1 (C.A.); Reference re French Language Rights of Accused in Saskatchewan Criminal Proceedings, [1987] 5 W.W.R. 577; R. v. Murphy (1968), 69 D.L.R. (2d) 530; Re Poulin (1968), 64 W.W.R. 705; Toll v. Canadian Pacific Railway Co. (1908), 8 W.L.R. 795; Schultz v. Wolske (1966), 75 W.W.R. 411; Stevens v. Quinney (1979), 101 D.L.R. (3d) 289; The India (1865), 12 L.T.N.S. 316; Seward v. The "Vera Cruz" (1884), 10 App. Cas. 59; Winnipeg School Division No. 1 v. Craton, [1985] 2 S.C.R. 150; Spooner Oils Ltd. v. Turner Valley Gas Conservation Board, [1933] S.C.R. 629; Edwards v. Attorney-General for Canada, [1930] A.C. 124; M'Culloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819); OPSEU v. Ontario (Attorney General), [1987] 2 S.C.R. 2; Attorney General of Canada v. Canadian National Transportation, Ltd., [1983] 2 S.C.R. 206; Hoskyn v. Metropolitan Police Commissioner, [1979] A.C. 474; Bribery Commissioner v. Ranasinghe, [1965] A.C. 172; Attorney-General for New South Wales v. Trethowan, [1932] A.C. 526; Harris v. Minister of the Interior, [1952] 2 S.A.L.R. (N.S.) 428.
By Estey J. (dissenting)
Strachan v. Lamont (1906), 4 W.L.R. 411; Société des Acadiens du Nouveau-Brunswick Inc. v. Association of Parents for Fairness in Education, [1986] 1 S.C.R. 549; Jones v. Attorney General of New Bruns- wick, [1975] 2 S.C.R. 182; R. v. Lefebvre (1982), 21 Alta. L.R. (2d) 65 (Q.B.), aff'd (1986), 48 Alta. L.R. (2d) 124 (C.A.); Attorney General of Manitoba v. Forest, [1979] 2 S.C.R. 1032; Reference re Manitoba Language Rights, [1985] 1 S.C.R. 721; MacDonald v. City of Montreal, [1986] 1 S.C.R. 460.
Statutes and Regulations Cited
Act further to amend the law respecting the North-West Territories, S.C. 1886, c. 25, s.3.
Act that all Proceedings in Courts of Justice within that Part of Great Britain called England, and in the Court of Exchequer in Scotland, shall be in the English Language, 4 Geo. 2, c. 26 (G.B.)
Act to amend Schedule A to the Revised Statutes, 1906, S.C. 1907, c. 44. 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. 1970, App. II, No. 19], s. 16 .
Canadian Charter of Rights and Freedoms, ss. 7 , 14 , 16 , 17 , 18 , 19 , 20 .
Colonial Laws Validity Act, 1865 (U.K.), 28 & 29 Vict., c. 63, s. 5.
Constitution Act, 1867, ss. 92(14) , 93 , 101 , 129 , 133 , 146 .
Constitution Act, 1871 (U.K.), 34 & 35 Vict., c. 28 [reprinted in R.S.C. 1970, App. II, No. 11], ss. 2, 4, 5, 6.
Constitution Act, 1982, ss. 43 , 45 .
Court of Appeal Act, S.S. 1915, c. 9.
District Courts Act, S.S. 1907, c. 9.
International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI), 21 U.N. GAOR, Supp. (No. 16) 52, U.N. Doc. A/6316 (1966), art. 27.
Interpretation Act, R.S.S. 1978, c. I-11.
Judicature Act, S.S. 1907, c. 8, ss. 3, 4.
King's Bench Act, S.S. 1915, c. 10.
Legislative Assembly Act, S.S. 1906, c. 4.
Magistrates Act, S.S. 1906, c. 19.
Manitoba Act, 1870, S.C. 1870, c. 3 [reprinted in R.S.C. 1970, App. II, No. 8], s. 23.
Manitoba Boundaries Extension Act, 1912, S.C. 1912, c. 32.
North-West Territories Act, 1875, S.C. 1875, c. 49, ss. 13, 59.
North-West Territories Act, 1877, S.C. 1877, c. 7, s. 11.
North-West Territories Act, 1880, S.C. 1880, c. 25, s. 94.
North-West Territories Act, R.S.C. 1886, c. 50, s. 110 [rep. & subs. 1891, c. 22, s. 18].
North-West Territories Amendment Act, 1905, S.C. 1905, c. 27, ss. 2, 6, 8.
Official Languages of New Brunswick Act, R.S.N.B.1973, c. O-1, s. 13(1). Ordinances of the Northwest Territories, 1905-1930.
Parliament Act, 1911 (U.K.), 1 & 2 Geo. 5, c. 13.
Police Magistrates' Act, S.S. 1907, c. 14.
Provincial Court Act, 1978, S.S. 1978, c. 42 [now R.S.S. 1978 (Supp.), c. P-30.1].
Revised Statutes of Canada, 1906, Act, S.C. 1907, c. 43.
Rupert's Land Act, 1868 (U.K.), 31 & 32 Vict., c. 105 [reprinted in R.S.C. 1970, App. II, No. 6].
Rupert's Land and North-Western Territory Order, June 23, 1870, R.S.C. 1970, App. II, No. 9.
Saskatchewan Act, S.C. 1905, c. 42 [reprinted in R.S.C. 1970, App. II, No. 20], ss. 3, 10, 12, 13 , 14 , 15 , 16 , 17 , 18 , 20 .
Saskatchewan Evidence Act, R.S.S. 1978, c. S-16.
Summary Offences Procedure Act, R.S.S. 1978, c. S-63.
Surrogate Courts Act, S.S. 1907, c. 10.
Temporary Government of Rupert's Land Act, 1869, S.C. 1869, c. 3 [reprinted in R.S.C. 1970, App. II, No. 7].
Vehicles Act, R.S.S. 1978, c. V-3, s. 139(4).
Authors Cited
Canada. Canada Year Book 1912. Ottawa: King's Printer, 1913.
Canada. Statistics Canada. Canada Year Book 1988. Ottawa: Supply and Services Canada, 1987.
Debates of the House of Commons, 4th Sess., 3rd Parl., 40 Vict., 1877, p. 1872.
Debates of the House of Commons, 4th Sess., 6th Parl., 53 Vict., 1890, pp. 756, 857, 1002.
Debates of the House of Commons, 1st Sess., 10th Parl., 5 Edw. VII, 1905, pp. 8240, 8242, 8530 et seq., 8548, 8554, 8571, 8572, 8576, 8577, 8579, 8580, 8607, 8608, 8610, 8843, 8850, 8851.
Debates of the Senate, 4th Sess., 3rd Parl., 40 Vict., 1877, p. 319.
Driedger, Elmer A. Construction of Statutes, 2nd ed.
Toronto: Butterworths, 1983.
Driedger, Elmer A. The Composition of Legislation, 2nd ed. rev. Ottawa: Department of Justice, 1976.
Hogg, Peter W. Constitutional Law of Canada, 2nd ed.
Toronto: Carswells, 1985.
Jennings, Sir William Ivor. The Law and the Constitution, 3rd ed. London: University of London Press, 1943.
Kerr, Robert W. "Regina v. Murphy and Language Rights Legislation" (1970), 20 U.N.B.L.J.35.
Sheppard, Claude-Armand. The Law of Languages in Canada. Ottawa: Information Canada, 1971.
Silver, Arthur I. The French-Canadian Idea of Confederation, 1864-1900. Toronto: University of Toronto Press, 1982. Tabory, Mala. "Language Rights as Human Rights" (1980), 10 Israel Y.B. on Human Rights 167.
Wade, Mason. The French Canadians 1760-1967, vol.
1. Toronto: MacMillan, 1968.
Wheare, Kenneth Clinton. The Statute of Westminster and Dominion Status, 5th ed. London: Oxford University Press, 1953.
APPEAL from a judgment of the Saskatchewan Court of Appeal (1985), 44 Sask. R. 22, 24 D.L.R. (4th) 193, 23 C.C.C. (3d) 140, [1986] 2 W.W.R. 1, upholding a judgment of the Provincial Court (1981), 44 Sask. R. 43 , [1981] 4 W.W.R. 435. Appeal allowed, Estey and McIntyre JJ. dissenting.
Michel Bastarache and Roger Lepage, for the appellant and the interveners (principal parties).
Robert G. Richards and Cheryl Crane, for the respondent.
Peter T. Costigan and J. Robert Black, for the intervener the Attorney General for Alberta.
Joseph Eliot Magnet, for the intervener the Freedom of Choice Movement.
The judgment of Dickson C.J. and Beetz, Lamer, Wilson, Le Dain and La Forest JJ. was delivered by
La Forest J.—This case raises several important questions: whether a French-speaking person accused of a provincial quasi-criminal offence under a Saskatchewan statute has the right to use French at his trial; whether he has the right to have the trial conducted in that language; whether the statutes of that province are required to be published in both English and French; whether such rights are constitutionally entrenched; and the content of any such rights.
Background
The case arises out of the following facts. The appellant, Father Mercure, was charged with speeding contrary to s. 139(4) of The Vehicles Act, R.S.S. 1978, c. V-3, and was issued a summons under the provisions of The Summary Offences Procedure Act, R.S.S. 1978, c. S-63. On his appearance in the Provincial Court, his counsel applied for permission to enter a plea to the charge in the French language, to have his trial proceeded with in that language, and to have the hearing of the charge delayed until such time as the Clerk of the Legislative Assembly for the province of Saskatchewan could produce the relevant statutes printed in the French language.
There is no law of the provincial legislature dealing with these issues; nor is there any express provision in the province's constituent Act, the Saskatchewan Act, S.C. 1905, c. 42, regarding the matter. Saskatchewan, however, was not created in a legal vacuum. Before its establishment it formed part of the North-West Territories, the constituent Act of which, The North-West Territories Act, R.S.C. 1886, c. 50, as amended, contained a provision, s. 110, rather similar to s. 133 of the Constitution Act, 1867 , which provided for the use of English and French in proceedings before the Territorial Assembly and the courts and requiring the use of both languages in the Assembly's records and journals as well as the printing of its laws in those languages. The provision was re-enacted in 1891 (S.C. 1891, c. 22, s. 18), and as so framed was in effect at the establishment of the province. It reads as follows:
110. Either the English or the French language may be used by any person in the debates of the Legislative Assembly of the Territories and in the proceedings before the courts; and both those languages shall be used in the records and journals of such Assembly; and all ordinances made under this Act shall be printed in both those languages: Provided, however, that after the next general election of the Legislative Assembly, such Assembly may, by ordinance or otherwise, regulate its proceedings, and the manner of recording and publishing the same; and the regulations so made shall be embodied in a proclamation which shall be forthwith made and published by the Lieutenant Governor in conformity with the law, and thereafter shall have full force and effect. [Emphasis added.]
Counsel for the appellant maintained that this provision applies to the courts and the Legislature of Saskatchewan by virtue of s. 16 of the Saskatchewan Act which (like s. 129 of the Constitu- tion Act, 1867) continues existing laws, subject to their being repealed by the appropriate legislature. Section 16(1), so far as immediately relevant, reads:
16. (1) All laws and all orders and regulations made thereunder, so far as they are not inconsistent with anything contained in this Act, or as to which this Act contains no provision intended as a substitute therefor, and all courts of civil and criminal jurisdiction, and all commissions, powers, authorities and functions, and all officers and functionaries, judicial, administrative and ministerial, existing immediately before the coming into force of this Act in the territory hereby established as the province of Saskatchewan, shall continue in the said province as if this Act and The Alberta Act had not been passed; subject, nevertheless, except with respect to such as are enacted by or existing under Acts of the Parliament of Great Britain, or of the Parliament of the United Kingdom of Great Britain and Ireland, to be repealed, abolished or altered by the Parliament of Canada, or by the Legislature of the said province, according to the authority of the Parliament or of the said Legislature…
Judge Deshaye, who heard the case at first instance, agreed that the effect of these provisions was to permit Father Mercure to use French in the court: (1981), 44 Sask. R. 43 , [1981] 4 W.W.R. 435. Section 110 of The North-West Territories Act, in his view, was continued by s. 16 of the Saskatchewan Act so far as the languages of the courts were concerned. But that right, he held, would be satisfied by making an interpreter available. He also held that the requirement in s. 110 regarding the publication of laws was in terms restricted to the Territorial Assembly and had no application to the Legislature of Saskatchewan. Father Mercure not having made a plea, the judge entered a plea of not guilty and the trial was conducted entirely in English, following which Father Mercure was found guilty of the charge and convicted. No interpreter was present because the appellant took the position that having an interpreter did not comply with s. 110 and that he could not defend himself without access to the relevant statutes proclaimed and printed in the French language.
An appeal to the Saskatchewan Court of Appeal, heard by a five person panel, was dismissed: (1985), 44 Sask. R. 22, 24 D.L.R. (4th) 193, 23 C.C.C. (3d) 140, [1986] 2 W.W.R. 1. A majority (Bayda C.J.S., Brownridge, Tallis and Cameron JJ.A.) came to substantially the same conclusion as the trial judge regarding the continuance of language rights. In dissent, however, Hall J.A. concluded that s. 110 continued in effect only during the transitional period when the province was being established. However, he noted that if he was in error on this point, he did not think the requirements relating to the conduct of the trial would be satisfied by merely supplying an interpreter, but would require simultaneous translation from one language to the other. Assuming such error, he further thought the statutes of Saskatchewan would have to be printed in both English and French; the language of s. 110, in his view, was clear on this point.
Father Mercure was granted leave to appeal to this Court but he died before the appeal could be heard. This Court, however, then authorized the intervener associations to continue the appeal as principal parties. The Attorney General for Alberta, which province is in a similar situation to Saskatchewan, intervened, as did the Freedom of Choice Movement. The Court stated the following constitutional questions:
1. Does s. 110 of The North-West Territories Act (54 & 55 Vict., c. 22, s. 18) continue to apply, in whole or in part, to the province of Saskatchewan by virtue of s. 16 of the Saskatchewan Act?
2. If the answer to Question 1 is affirmative, do the rights which are derived from s. 110 of The North-West Territories Act form part of the Constitution of Canada or can they be modified unilaterally by Saskatchewan and if so to what extent?
3. If the answer to Question 1 is affirmative, does s. 110 of The North-West Territories Act require Saskatchewan to print its laws in English and in French? 4. If the answer to Question 1 is affirmative, does s. 110 of The North-West Territories Act afford a party pleading in a court of Saskatchewan the right to use either English or French?
5. If the answer to Question 1 is affirmative, does s. 110 of The North-West Territories Act require that the proceedings be conducted in English or French at the option of the accused or defendant?
6. If the answer to Question 4 is affirmative, does the right to use either English or French before the courts of Saskatchewan include, by virtue of s. 110 of The North-West Territories Act, the right to be understood by the judge or judge and jury without the assistance of an interpreter or simultaneous translation?
Legislative History
In my view, this case can be resolved simply by the application of the ordinary principles of statutory construction. However, all parties stressed the legislative history of the appropriate provisions and grounded some of their arguments in that history. At all events, it forms a useful backdrop for a consideration of the central issues and is of assistance in revealing legislative purpose. For much of the following historical discussion, I have relied upon Claude-Armand Sheppard, The Law of Languages in Canada (1971), c. I-C (a study of the Royal Commission on Bilingualism and Biculturalism).
When the four original provinces were united by the Constitution Act, 1867 , the territory now comprising Saskatchewan did not, of course, form part of Canada but was part of the vast area known as Rupert's Land and the North-Western Territory originally ceded to the Hudson's Bay Company in 1670 which still exercised all governmental powers over the area at Confederation. However, s. 146 of that Act contemplated the transfer of these Territories to Canada. Accordingly, these lands were surrendered by the Hudson's Bay Company in 1868 (Rupert's Land Act, 1868 (U.K.), 31 & 32 Vict., c. 105), and in 1870 the Territories were admitted into the Union pursuant to an Imperial Order in Council; see R.S.C. 1970, App. II, No. 9. In the interim, Canada had passed a rudimentary Act for their temporary administration (S.C. 1869, c.3).
The impending changes were not viewed with favour by the people in the Territories, most of whom lived in the Red River area of what is now Manitoba. Many of them were French-speaking and had been accustomed to considerable governmental services in their own language, both by the Council of Assiniboia, which exercised governmental functions in the Red River area, and in the courts. From about 1835, the Council of Assiniboia began publishing its resolutions by reading them aloud in English and French (Sheppard, op. cit., at pp. 73-76), and from about 1855, local representation on the Council was on a roughly equal English and French basis (see Mason Wade, The French Canadians 1760-1967 (rev. ed. 1968), vol. 1, at p. 397). Similarly the courts counted a number of bilingual judges.
After some tense confrontations, in which demands were made that English and French be used in the legislature and that judges speak both languages, the Canadian government acceded to the demands of the people of the Territories. To that end, Canada enacted the Manitoba Act, 1870, S.C. 1870, c. 3, which created the province of Manitoba out of the Red River settlement and surrounding lands, and by s. 23, provided certain guarantees regarding the use of the English and French languages in the Manitoba Legislature and in its courts. The background in Manitoba is set forth in Reference re Manitoba Language Rights, [1985] 1 S.C.R. 721, at pp. 731-32. For a detailed account of the situation in the Territories generally, see also Sheppard, op. cit., at pp. 77-79.
I should add here that while s. 146 of the Constitution Act, 1867 provided for the admission of those Territories into the Union, it made no specific provision for the manner in which Parliament could deal with them. To settle the doubts surrounding this question, the Constitution Act, 1871 (U.K.), 34 & 35 Vict., c. 28, was enacted. This Act by s. 2 gave Parliament power to create new provinces and by s. 5 confirmed the Manitoba Act, 1870. More important for present purposes, it also provided, by s. 4, that Parliament could make provision for the administration, peace, order and good government of any territory not for the time being included in any province.
The first North-West Territories Act, enacted in 1869 (S.C. 1869, c. 3) before this enabling legislation, said nothing about the language of the courts or the legislature. This is scarcely surprising owing to its temporary and rudimentary character. Nor were any such provisions enacted in The North-West Territories Act, 1875, S.C. 1875, c. 49, which amended and consolidated earlier enactments for the governance of the Territories. In 1877, however, while some unrelated amendments were being made, the first version of s. 110 was added to the amending Bill in the Senate; see S.C. 1877, c. 7, s. 11. That provision read as follows:
11. Either the English or the French language may be used by any person in the debates of the said Council, and in the proceedings before the Courts, and both those languages shall be used in the records and journals of the said Council, and the ordinances of the said Council shall be printed in both those languages.
The amendment was not sponsored by the Government. Rather it was introduced in the Senate by Senator Girard of Manitoba who stated that this was desirable because there were as many French as English people in the Territories; see Debates of the Senate, 1877, at p. 319 (the debate is reproduced by Belzil J.A. (dissenting) in R. v. Lefebvre (1986), 48 Alta. L.R. (2d) 124, at p. 138); see also Debates of the House of Commons, 1905, at p. 8576 (Laurier), and at p. 8607 (Brodeur). The amendment was rather grudgingly accepted by the Government when it came up for consideration in the House of Commons in order to avoid delaying the Bill for another session (see Debates of House of Commons, 1890, at p. 1002 (Watson)). But there is no suggestion that the Government had any objection to the amendment as such. Rather, as Mr. Mills, speaking for the Government, stated, it regretted the amendment because it had thought this was a matter best left to the Council in question; see Debates of the House of Commons, 1877, at p. 1872; see also the Debates of 1905 at p. 8531 (Monk). This policy was probably grounded in the dominant attitude in Quebec that language rights should be left to the local governments rather than to Parliament; see in this context A. I. Silver, The French-Canadian Idea of Confederation, 1864-1900 (1982), esp. cc. 7-10.
There appears to be a suggestion in the factums of the respondent and the Attorney General for Alberta that s. 110 was in some way inextricably linked with the language guarantees in s. 133 of the Constitution Act, 1867 . I am unable to fully understand the basis of this argument. If section 133 applied, it would apply proprio vigore. If the courts of the North-West Territories are courts for the better administration of the laws of Canada under s. 101 of the Constitution Act, 1867 , then s. 133 applies to them without more. If it does not apply to these courts, there is no requirement in s. 133 for Parliament to enact a provision like s. 110 . I have combed the appropriate pages of Hansard and have found nothing that would lead to the view that s. 110 was enacted to give effect to s. 133 , although some years later Laurier stated that one of the reasons s. 110 was not repealed in 1890 was that s. 133 guaranteed similar rights in relation to the courts; see Debates of the House of Commons, 1905, at p. 8579. Indeed, the impression one gets is that at the time s. 110 was enacted, s. 133 was thought to have no application for, as we saw, Mr. Mills who made the motion in the House concurring in the Senate amendment, stated that he regretted that the amendment had been made because they (the Government) had thought that this was a matter which was better left to the Territorial Council. However that may be, s. 110 was separately enacted by Parliament and continued in its own right.
The notion that the local authorities might legally deal with these language issues is not really surprising. Certainly, the language of debate in the Assembly was not covered