Re Manitoba Language Rights

Re Manitoba Language Rights
Collection
Supreme Court Judgments
Date
1985-06-13
Report
[1985] 1 SCR 721
Case number
18606
Judges
Dickson, Robert George Brian; Beetz, Jean; Estey, Willard Zebedee; McIntyre, William Rogers; Lamer, Antonio; Wilson, Bertha; Le Dain, Gerald Eric
On appeal from
Manitoba
Subjects
Constitutional law
Notes
SCC Case Information: 18606
Decision Content
Re Manitoba Language Rights, [1985] 1 S.C.R. 721
IN THE MATTER OF Section 55 of the Supreme Court Act, R.S.C. 1970, c. S‑19, as amended;
AND IN THE MATTER OF a Reference by the Governor in Council concerning certain language rights under Section 23 of the Manitoba Act, 1870, and Section 133 of the Constitution Act, 1867 and set out in Order‑in‑Council P.C. 1984‑1136 dated the 5th day of April 1984
File No.: 18606.
1984: June 11, 12, 13; 1985: June 13.
Present: Dickson C.J. and Beetz, Estey, McIntyre, Lamer, Wilson and Le Dain JJ.
reference by the governor in council
Constitutional law ‑‑ Language guarantees ‑‑ Manitoba statutes to be enacted, printed and published in both English and French ‑‑ Whether or not s. 23 of Manitoba Act, 1870 mandatory or directory ‑‑ Whether or not statutes, current, repealed or spent, valid if constitutional linguistic requirements not met ‑‑ Extent of force or effect, if any, if statutes invalid ‑‑ Whether or not Act Respecting the Operation of Section 23 of the Manitoba Act in Regard to Statutes valid and of force or effect ‑‑ Manitoba Act, 1870, R.S.C. 1970, App. II, s. 23 ‑‑ Constitution Act, 1867, s. 133 ‑‑ Constitution Act, 1982, s. 52 ‑‑ An Act to Provide that the English Language shall be the Official Language of the Province of Manitoba, 1890 (Man.), c. 14 ‑‑ Act Respecting the Operation of Section 23 of the Manitoba Act in Regard to Statutes, 1980 (Man.), c. 3.
The Governor General in Council by Order in Council P.C. 1984‑1136 dated April 5, 1984, in accordance with s. 55 of the Supreme Court Act , referred to this Court four questions. The questions and this Court's answers are:
Question 1‑‑ Are the requirements of s. 133 of the Constitution Act, 1867 and of s. 23 of the Manitoba Act, 1870 respecting the use of both the English and French languages in
(a) the Records and Journals of the Houses of the Parliament of Canada and of the Legislatures of Quebec and Manitoba, and
(b) the Acts of the Parliament of Canada and of the Legislatures of Quebec and Manitoba
mandatory?
Answer‑‑ Yes.
Question 2‑‑ Are those statutes and regulations of the Province of Manitoba that were not printed and published in both the English and French languages invalid by reason of s. 23 of the Manitoba Act, 1870?
Answer‑‑ Yes, but, for the reasons given by the Court, the invalid current Acts of the Legislature will be deemed temporarily valid for the minimum period of time necessary for their translation, re‑enactment, printing and publication.
Question 3‑‑ If the answer to question 2 is affirmative, do those enactments that were not printed and published in English and French have any legal force and effect, and if so, to what extent and under what conditions?
Answer‑‑ The Acts of the Legislature that were not enacted, printed and published in English and French have no legal force and effect because they are invalid, but, for the reasons given by the Court, the current Acts of the Legislature will be deemed to have temporary force and effect for the minimum period of time necessary for their translation, re‑enactment, printing and publication.
Question 4‑‑ Are any of the provisions of An Act Respecting the Operation of Section 23 of the Manitoba Act in Regard to Statutes, enacted by S.M. 1980, Ch. 3, inconsistent with the provisions of s. 23 of the Manitoba Act, 1870, and if so are such provisions, to the extent of such inconsistency, invalid and of no legal force and effect?
Answer‑‑ If An Act Respecting the Operation of Section 23 of the Manitoba Act in Regard to Statutes, enacted by S.M. 1980, Ch. 3, was not enacted, printed and published in both official languages, then it is invalid and of no force and effect in its entirety.
If it was enacted, printed and published in both official languages, then ss. 1 to 5 are invalid and of no force and effect.
I
Question 1:
The requirement that both English and French be used in the Records, Journals and Acts of Canada, Quebec and Manitoba, in s. 133 of the Constitution Act, 1867 and s. 23 of the Manitoba Act, 1870, is mandatory. The history and language of these sections indicate that the guarantee they entrench must be obeyed.
II
Questions 2 and 3:
The words "Acts of the Legislature" in s. 23 of the Manitoba Act, 1870 encompass all statutes, regulations, and delegated legislation of the Manitoba Legislature, enacted since 1890, which are covered by this Court's judgments in Attorney General of Quebec v. Blaikie, [1979] 2 S.C.R. 1016, and Attorney General of Quebec v. Blaikie, [1981] 1 S.C.R. 312.
All of the unilingual Acts of the Legislature of Manitoba are, and always have been, invalid and of no force or effect. Section 23 of the Manitoba Act, 1870 entrenches a mandatory requirement to enact, print and publish all Acts of the Legislature in both official languages and, thus, establishes a constitutional duty on the Manitoba Legislature with respect to the manner and form of enactment of legislation. This duty protects the substantive rights of all Manitobans to equal access to the law in either French or English.
Section 52 of the Constitution Act, 1982 does not alter the principles which have provided the foundation for judicial review over the years. In a case where constitutional manner and form requirements have not been complied with, the consequence of such non‑compliance continues to be invalidity. The words "of no force or effect" mean that a law thus inconsistent with the Constitution has no force or effect because it is invalid.
The unilingual enactments of the Manitoba Legislature are inconsistent with s. 23 of the Manitoba Act, 1870 and are invalid and of no force or effect because the constitutionally required manner and form for their enactment has not been followed.
The Court must declare the unilingual Acts of the Legislature of Manitoba to be invalid and of no force and effect. This declaration, however, without more, would create a legal vacuum with consequent legal chaos in the Province of Manitoba. The Manitoba Legislature has, since 1890, enacted nearly all of its laws in English only. The conclusion that all unilingual Acts of the Legislature of Manitoba are invalid and of no force or effect means that the positive legal order which has purportedly regulated the affairs of the citizens of Manitoba since 1890 is destroyed and the rights, obligations and any other effects arising under these laws are invalid and unenforceable. From the date of this judgment, the Province of Manitoba has an invalid and therefore ineffectual legal system until the Legislature is able to translate, re‑enact, print and publish its current laws in both official languages.
The constitutional principle of the rule of law would be violated by these consequences. The principle of rule of law, recognized in the Constitution Acts of 1867 and 1982, has always been a fundamental principle of the Canadian constitutional order. The rule of law requires the creation and maintenance of an actual order of positive laws to govern society. Law and order are indispensable elements of civilized life. This Court must recognize both the unconstitutionality of Manitoba's unilingual laws and the Legislature's duty to comply with the supreme law of this country, while avoiding a legal vacuum in Manitoba and ensuring the continuity of the rule of law.
There will be a period of time during which it would not be possible for the Manitoba Legislature to comply with its constitutional duty under s. 23 of the Manitoba Act, 1870. It is therefore necessary, in order to preserve the rule of law, to deem temporarily valid and effective the Acts of the Manitoba Legislature, which would be currently in force were it not for their constitutional defect. The period of temporary validity will run from the date of this judgment to the expiry of the minimum period necessary for translation, re‑enactment, printing and publishing.
With respect to rights, obligations and any other effects which have purportedly arisen under repealed, spent or current unilingual Acts of the Manitoba Legislature, some will be enforceable and forever beyond challenge by the operation of legal doctrines such as the de facto doctrine, res judicata and mistake of law. Those rights, obligations and other effects not saved by the operation of these doctrines are deemed temporarily to have been, and to continue to be, valid, enforceable and beyond challenge until the expiry of the minimum period necessary for translation, re‑enactment, printing and publishing of the Acts of the Legislature of Manitoba under which they arose. At the termination of the minimum period, these rights, obligations and other effects will cease to have temporary validity and enforceability, unless the Acts under which they arose have been translated, re‑enacted, printed and published in both languages. As a consequence, to ensure the continuing validity and enforceability of rights, obligations and other effects not saved by the de facto or other doctrines, the repealed or spent Acts of the Legislature, under which these rights, obligations and other effects have purportedly arisen, may need to be re‑enacted, printed and published, and then again repealed, in both official languages.
Temporary validity, however, will not apply to unilingual Acts of the Legislature passed after the date of this judgment. From the date of judgment, laws not enacted, printed and published in both languages will be invalid and of no force or effect ab initio.
The Court, as presently equipped, is unable to determine the period during which it would not be possible for the Manitoba Legislature to comply with its constitutional duty. Following a request for determination from the Attorney General of Canada or the Attorney General of Manitoba, made within one hundred and twenty days of the date of judgment, the Court will set a special hearing, accept submissions from the Attorney General of Canada, the Attorney General of Manitoba as well as the other interveners, and make a determination of the minimum period necessary for translation, re‑enactment, printing and publishing of the Acts of the Manitoba Legislature.
III
Question 4:
An Act Respecting the Operation of Section 23 of the Manitoba Act in Regard to Statutes, 1980 (Man.), c. 3, is invalid and of no force and effect in its entirety if it was not enacted, printed and published in both official languages. In any event, ss. 1 to 5 are invalid and of no force or effect because they violate the rights guaranteed in s. 23 of the Manitoba Act, 1870.
Cases Cited
Attorney General of Quebec v. Blaikie, [1979] 2 S.C.R. 1016, affirming [1978] C.A. 351, 95 D.L.R. (3d) 42, affirming [1978] C.S. 37, 85 D.L.R. (3d) 252; Attorney General of Quebec v. Blaikie, [1981] 1 S.C.R. 312, followed; Attorney General of the Republic v. Mustafa Ibrahim, [1964] Cyprus Law Reports 195; Special Reference No. 1 of 1955, P.L.R. 1956 W.P. 598, considered; Pellant v. Hebert, St. Boniface Co. Ct., March 9, 1892, reported at (1981), 12 R.G.D. 242; Bertrand v. Dussault, St. Boniface Co. Ct., January 30, 1909, reported at 77 D.L.R. (3d) 445 at 458; Re Forest and Registrar of Court of Appeal of Manitoba (1977), 77 D.L.R. (3d) 445; R. v. Forest (1976), 74 D.L.R. (3d) 704; Attorney General of Manitoba v. Forest, [1979] 2 S.C.R. 1032; Bilodeau v. Attorney General of Manitoba, [1981] 5 W.W.R. 393; Société Asbestos Ltée v. Société nationale de l’amiante, [1979] C.A. 342; Re Public Finance Corp. and Edwards Garage Ltd. (1957), 22 W.W.R. 312; Jones v. Attorney General of New Brunswick, [1975] 2 S.C.R. 182; Montreal Street Railway Co. v. Normandin, [1917] A.C. 170; Howard v. Bodington (1877), 2 P. 203; R. ex rel. Anderson v. Buchanan (1909), 44 N.S.R. 112; Bribery Commissioner v. Ranasinghe, [1965] A.C. 172; Amax Potash Ltd. v. Government of Saskatchewan, [1977] 2 S.C.R. 576; Re: Resolution to Amend the Constitution, [1981] 1 S.C.R. 753; Procureur général du Québec v. Collier, [1983] C.S. 366; Procureur général du Québec v. Brunet, J.E. 83‑510, rev'd on other grounds, J.E. 84‑62 (S.C.); Carl‑Zeiss‑Stiftung v. Rayner and Keeler Ltd. (No. 2), [1966] 2 All E.R. 536; Roncarelli v. Duplessis, [1959] S.C.R. 121; Reference re Disallowance and Reservation of Provincial Legislation, [1938] S.C.R. 71; Abbé de Fontaine’s Case (1431), Y.B. 9 H. VI, fol. 32; Scadding v. Lorant (1851), 3 H.L.C. 418, 10 E.R. 164; R. v. Slythe (1827), 6 B. & C. 240, 108 E.R. 441; Margate Pier Co. v. Hannam (1819), 3 B. & Ald. 266, 106 E.R. 661; O'Neil v. Attorney‑General of Canada (1896), 26 S.C.R. 122; Turtle v. Township of Euphemia (1900), 31 O.R. 404; R. v. Gibson (1896), 29 N.S.R. 4; R. v. Corporation of Bedford Level (1805), 6 East 356, 102 E.R. 1323; Parker v. Kett (1702), 1 Ld. Raym. 658, 91 E.R. 1338; Eadie v. Township of Brantford, [1967] S.C.R. 573; Texas v. White, 74 U.S. 700 (1868); Horn v. Lockhart, 84 U.S. 570 (1873); United States v. Insurance Companies, 89 U.S. 99 (1874); Baldy v. Hunter, 171 U.S. 388 (1898); Madzimbamuto v. Lardner‑Burke, [1969] 1 A.C. 645; Federation of Pakistan v. Tamizuddin Khan, P.L.R. 1956 W.P. 306; In re Initiative and Referendum Act, [1919] A.C. 935; Attorney‑General for Alberta v. Attorney‑General for Canada, [1947] A.C. 503, referred to.
Statutes and Regulations Cited
Act respecting a judgment rendered in the Supreme Court of Canada on 13 December 1979 on the language of the legislature and the courts in Québec, 1979 (Que.), c. 61.
Act Respecting the Operation of Section 23 of the Manitoba Act in Regard to Statutes, 1980 (Man.), c. 3.
Act to amend an Act Respecting the Operation of Section 23 of the Manitoba Act in Regard to Statutes, 1982 (Man.), c. 3, s. 1.
Act to Provide that the English Language shall be the Official Language of the Province of Manitoba, 1890 (Man.), c. 14.
Colonial Laws Validity Act, 1865 (U.K.), 28 & 29 Vict., c. 63, s. 2.
Constitution Act, 1867 , preamble, ss. 55 , 57 , 90 , 92 , 92A [en. Constitution Act, 1982, s. 50 ], 93, 95, 133.
Constitution Act, 1982 , preamble, ss. 18(1) , 41 (a), 43 , 52 .
Interpretation Act, 1867 (Can.), 31 Vict., c. 1, s. 6(3).
Interpretation Act, R.S.C. 1970, c. I‑23, s. 28 "shall".
Manitoba Act, 1870, R.S.C. 1970, App. II, ss. 2, 14, 17, 23.
Statute of Westminster, 1931 (U.K.), 22 Geo. V, c. 4.
Supreme Court Act, R.S.C. 1970, c. S‑19, s. 55 .
Authors Cited
Constantineau, A. The De Facto Doctrine, Toronto, Canada Law Book Co., 1910.
Dicey, A.V. The Law of the Constitution, 10th ed., London, MacMillan & Co. Ltd., 1959.
Honore, A.M. "Reflections on Revolutions" (1967), 2 Irish Jurist 268.
Jennings, W.I. The Law and the Constitution, 5th ed., London, University of London Press, 1959.
Odgers’ Construction of Deeds and Statutes, 5th ed. by G. Dworkin, London, Sweet & Maxwell, 1967.
Raz, J. The Authority of Law, Oxford, Clarendon Press, 1979.
Stavsky, M.M. "The Doctrine of State Necessity in Pakistan" (1983), 16 Cornell Int. L.J. 341.
Wade, E.C.S. and G.G. Phillips. Constitutional and Administrative Law, 9th ed., by A.W. Bradley, London, Longman, 1977.
REFERENCE by the Governor General in Council, pursuant to s. 55 of the Supreme Court Act , concerning certain language rights under s. 23 of the Manitoba Act, 1870 and s. 133 of the Constitution Act, 1867 .
Pierre Genest, Q.C., Edward R. Sojonky, Q.C., and Peter W. Hogg, Q.C., for the Attorney General of Canada.
Joseph Eliot Magnet, for the Société franco‑manitobaine.
Gérald‑A. Beaudoin, Q.C., for the Fédération des francophones hors Québec.
Jean‑K. Samson et André Binette, for the Attorney General of Quebec.
Vaughan L. Baird, Q.C., for Roger Bilodeau.
Stephen A. Scott and Warren J. Newman, for Alliance Québec.
Walter J. Roustan, for the Freedom of Choice Movement.
A. Kerr Twaddle, Q.C., and William S. Gange, for the Attorney General of Manitoba.
D. C. H. McCaffrey, Q.C., Colin J. Gillespie and J. F. Reeh Taylor, Q.C., for Douglas L. Campbell, James A. Richardson, Cecil Patrick Newbound, Russell Doern, Herbert Schulz and Patricia Maltman.
The following is the judgment delivered by
The Court
I
The Reference
1. This Reference combines legal and constitutional questions of the utmost subtlety and complexity with political questions of great sensitivity. The proceedings were initiated by Order in Council, P.C. 1984‑1136 dated April 5, 1984, pursuant to s. 55 of the Supreme Court Act, R.S.C. 1970, c. S‑19. The Order in Council reads:
WHEREAS the Minister of Justice reports;
1. That it is important to resolve as expeditiously as possible legal issues relating to certain language rights under section 23 of the Manitoba Act, 1870 and section 133 of the Constitution Act, 1867 .
2. That in order that such legal issues be addressed without delay, it is considered necessary that the opinion of the Supreme Court of Canada be obtained in relation to the following questions, namely:
Question #1
Are the requirements of section 133 of the Constitution Act, 1867 and of section 23 of the Manitoba Act, 1870 respecting the use of both the English and French languages in
(a) the Records and Journals of the Houses of the Parliament of Canada and of the Legislatures of Quebec and Manitoba, and
(d) the Acts of the Parliament of Canada and of the Legislatures of Quebec and Manitoba
mandatory?
Question #2
Are those statutes and regulations of the Province of Manitoba that were not printed and published in both the English and French languages invalid by reason of section 23 of the Manitoba Act, 1870?
Question #3
If the answer to question 2 is affirmative, do those enactments that were not printed and published in English and French have any legal force and effect, and if so, to what extent and under what conditions?
Question #4
Are any of the provisions of An Act Respecting the Operation of section 23 of the Manitoba Act in Regard to Statutes, enacted by S.M. 1980, Ch. 3, inconsistent with the provisions of section 23 of the Manitoba Act, 1870, and if so are such provisions, to the extent of such inconsistency, invalid and of no legal force and effect?
THEREFORE, HIS EXCELLENCY THE GOVERNOR GENERAL IN COUNCIL, on the recommendation of the Minister of Justice, pursuant to section 55 of the Supreme Court Act , is pleased hereby to refer the questions immediately above set forth to the Supreme Court of Canada for hearing and consideration.
2. An order of this Court dated April 10, 1984 directed that the Attorney General of Canada have carriage of the Reference. Leave to intervene was granted to: the Attorneys General of the Provinces of Manitoba and Quebec; Société franco‑manitobaine; Alliance Québec, Alliance for Language Communities in Quebec (formerly Positive Action Committee); Fédération des francophones hors Québec; the Freedom of Choice Movement; Roger Joseph Albert Bilodeau; Douglas L. Campbell, James A. Richardson, Cecil Patrick Newbound, Russell Doern, Herbert Schulz, and Patricia Maltman, residents of Manitoba and persons interested in the questions before the Court.
3. Section 23 of the Manitoba Act, 1870 provides:
23. Either the English or the French language may be used by any person in the debates of the Houses of the Legislature, and both those languages shall be used in the respective Records and Journals of those Houses; and either of those languages may be used by any person, or in any Pleading or Process, in or issuing from any Court of Canada established under the Constitution Act, 1867 , or in or from all or any of the Courts of the Province. The Acts of the Legislature shall be printed and published in both those languages.
4. The provisions of s. 133 of the Constitution Act, 1867 are virtually identical to those of s. 23 of the Manitoba Act, 1870. Section 133 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 be printed and published in both those Languages.
II
Manitoba's Language Legislation
5. Section 23 of the Manitoba Act, 1870 was the culmination of many years of co‑existence and struggle between the English, the French, and the Metis in Red River Colony, the predecessor to the present day Province of Manitoba. Though the region was originally claimed by the English Hudson's Bay Company in 1670 under its Royal Charter, for much of its pre‑confederation history, Red River Colony was inhabited by anglophones and francophones in roughly equal proportions. On November 19, 1869 the Hudson's Bay Company issued a deed of surrender to transfer the North‑West Territories, which included the Red River Colony, to Canada. The transfer of title took effect on July 15, 1870.
6. Between November 19, 1869 and July 15, 1870, the provisional government of Red River Colony attempted to unite the various segments of the Red River colony and drew up a "Bill of Rights" to be used in negotiations with Canada. A Convention of Delegates was elected in January, 1870 to prepare the terms upon which Red River Colony would join the Confederation. The Convention was made up of equal numbers of anglophones and francophones elected from the various French and English parishes.
7. The final version of the Bill of Rights which was used by the Convention delegates in their negotiations with Ottawa, contained these provisions:
That the English and French languages be common in the Legislature, and in the courts, and that all public documents, as well as all Acts of the Legislature, be published in both languages.
That the Judge of the Superior Court speak the English and French languages.
These clauses were re‑drafted by the Crown lawyers in Ottawa and included in a Bill to be introduced in Parliament. The Bill passed through Parliament with no opposition from either side of the House, resulting in s. 23 of the Manitoba Act, 1870. In 1871 this Act was entrenched in the British North America Act, 1871 (renamed Constitution Act, 1871 in the Constitution Act, 1982, s. 53 ). The Manitoba Act, 1870 is now entrenched in the Constitution of Canada by virtue of s. 52(2) (b) of the Constitution Act, 1982 .
8. In 1890 An Act to Provide that the English Language shall be the Official Language of the Province of Manitoba, 1890 (Man.), c. 14 (hereinafter the Official Language Act, 1890), was enacted by the Manitoba Legislature. This Act provides:
1 Any statute or law to the contrary notwithstanding, the English language only shall be used in the records and journals of the House of Assembly for the Province of Manitoba, and in any pleadings or process in or issuing from any court in the Province of Manitoba. The Acts of the Legislature of the Province of Manitoba need only be printed and published in the English language.
2 This Act shall only apply so far as this Legislature has jurisdiction so to enact, and shall come into force on the day it is assented to.
9. Upon enactment of the Official Language Act, 1890 the Province of Manitoba ceased publication of the French version of Legislative Records, Journals and Acts.
III
Legal Challenges to Manitoba's Language Legislation
10. The Official Language Act, 1890 was challenged before the Manitoba courts soon after it was enacted. It was ruled ultra vires in 1892 by Judge Prud'homme of the County Court of St. Boniface, who stated: [TRANSLATION] "I am therefore of the view that c. 14, 53 Vict. is ultra vires the Legislature of Manitoba and that section 23 of the Manitoba Act cannot be changed and even less repealed by the Legislature of that province": Pellant v. Hebert, first published in Le Manitoba (a French language newspaper), March 9, 1892, reported in (1981), 12 R.G.D. 242. This ruling was not followed by the Legislature or the Government of Manitoba. The Official Language Act, 1890 remained in successive revisions of the Statutes of Manitoba; the Government did not resume bilingual publication of Legislative Records, Journals or Acts.
11. In 1909, the Official Language Act, 1890 was again challenged in Manitoba Courts and again ruled unconstitutional: Bertrand v. Dussault, January 30, 1909, County Court of St. Boniface (unreported), reproduced in Re Forest and Registrar of Court of Appeal of Manitoba (1977), 77 D.L.R. (3d) 445 (Man. C.A.), at pp. 458‑62. According to Monnin J.A. in Re Forest, supra, at p. 458, "This latter decision, not reported, appears to have been unknown or ignored".
12. In 1976, a third attack was mounted against the Official Language Act, 1890 and the Act was ruled unconstitutional: R. v. Forest (1976), 74 D.L.R. (3d) 704 (Man. Co. Ct.) Nonetheless, the Official Language Act, 1890 remained on the Manitoba statute books; bilingual enactment, printing and publication of Acts of the Manitoba Legislature was not resumed.
13. In 1979, the constitutionality of the Official Language Act, 1890 was tested before this Court. On December 13, 1979, in Attorney General of Manitoba v. Forest, [1979] 2 S.C.R. 1032, this Court, in unanimous reasons, held that the provisions of Manitoba's Official Language Act, 1890 were in conflict with s. 23 of the Manitoba Act, 1870 and unconstitutional.
14. On July 9, 1980, after the decision of this Court in Forest, the Legislature of Manitoba enacted An Act Respecting the Operation of Section 23 of the Manitoba Act in Regard to Statutes, 1980 (Man.), c. 3. The validity of this Act is the subject of question 4 of this Reference.
15. In the fourth session (1980) and the fifth session (1980‑1981) of the thirty‑first Legislature of Manitoba, the vast majority of the Acts of the Legislature of Manitoba were enacted, printed and published in English only.
16. Since the first session of the thirty‑second Legislature of Manitoba (1982), the Acts of the Legislature of Manitoba have been enacted, printed and published in both English and French. However, those Acts that only amend Acts that were enacted, printed and published in English only, and private Acts, have in most instances been enacted in English only.
17. In Bilodeau v. Attorney General of Manitoba, [1981] 5 W.W.R. 393, the Manitoba Court of Appeal held that Manitoba's Highway Traffic Act, R.S.M. 1970, c. H60, and The Summary Convictions Act, R.S.M. 1970, c. S230, although enacted in English only, were valid. This decision is under appeal to this Court*.
*Judgment in Bilodeau v. Attorney General of Manitoba will be delivered at the time of delivery of judgment in MacDonald v. City of Montreal.
18. On July 4, 1983, the Attorney General of Manitoba introduced into the Legislative Assembly of Manitoba a resolution to initiate a constitutional amendment under s. 43 of the Constitution Act, 1982 . The purpose of the resolution was to amend the language provisions of the Manitoba Act, 1870. The second session of the thirty‑second Legislature was prorogued on February 27, 1984, without the resolution having been adopted.
19. It might also be mentioned that on December 13, 1979, in Attorney General of Quebec v. Blaikie, [1979] 2 S.C.R. 1016 (Blaikie No. 1), this Court held that the provisions of Quebec's Charter of the French language (Bill 101), enacted in 1977, were in conflict with s. 133 of the Constitution Act, 1867 . The Charter purported to provide for the introduction of Bills in the legislature in French only, and for the enactment of statutes in French only. The day after the decision of this Court in Blaikie No. 1, the Legislature of Quebec re‑enacted in both languages all those Quebec statutes that had been enacted in French only. See: An Act respecting a judgment rendered in the Supreme Court of Canada on 13 December 1979 on the language of the legislature and the courts in Québec, 1979 (Que.), c. 61.
20. The implication of this Court's holdings in Blaikie No. 1, supra, and Forest, supra, was that provincial legislation passed in accordance with the ultra vires statutes, i.e. enacted in one language only, was itself in derogation of the constitutionally entrenched language provisions of the Constitution Act, 1867 and the Manitoba Act, 1870, and therefore invalid. In Société Asbestos Ltée v. Société nationale de l'amiante, [1979] C.A. 342, the Quebec Court of Appeal held, in a judgment also rendered December 13, 1979, that this was indeed the consequence of unilingual enactment and struck down two statutes that had not been enacted in English.
21. In Attorney General of Quebec v. Blaikie, [1981] 1 S.C.R. 312 (Blaikie No. 2), this Court elaborated its earlier decision in Blaikie No. 1 by holding that regulations adopted by or subject to the approval of the Government of Quebec and Rules of Court were subject to the requirements of s. 133 . However, regulations adopted by subordinate bodies, outside the Government of Quebec, and not subject to the approval of the Government of Quebec, as well as municipal by‑laws and school board by‑laws, were not subject to the requirements of s. 133 .
22. The Manitoba Court of Appeal, in Bilodeau, supra, was faced with a similar challenge to unilingually enacted legislation. That Court held that the unilingual legislation of the Manitoba Legislature was not invalid. The majority (per Freedman C.J.M.) held that the requirement for bilingual enactment was directory rather than mandatory and that therefore the consequence of disobedience was not invalidity. Monnin J.A. thought that s. 23 was mandatory but would have applied the doctrine of state necessity (of which more anon) to prevent invalidity.
IV
Question 1
The Mandatory Nature of s. 133 of the Constitution Act, 1867 and s. 23 of the Manitoba Act, 1870
23. Question No. 1 of this Reference asks whether the requirements of s. 133 of the Constitution Act, 1867 and s. 23 of the Manitoba Act, 1870, respecting the use of both English and French in the Records, Journals and Acts of the Parliament of Canada and of the Legislatures of Quebec and Manitoba, are "mandatory".
24. The Attorney General of Manitoba responds to this question in his written argument with the plain assertion that:
Since the decisions of this Court in Attorney General of Quebec v. Blaikie, [1979] 2 S.C.R. 1016 and Attorney General of Manitoba v. Forest, [1979] 2 S.C.R. 1032 it is beyond dispute that statutes of the Parliament of Canada, of the National Assembly of Quebec and of the Legislature of Manitoba are required to be enacted in both the English and the French languages. The requirement is imperative, rather than permissive, in the sense that the legislative bodies have no option in the matter.
and later:
Obviously it was intended that the requirement of enactment in both languages be observed. The relevant question is: What is the consequence of non‑observance?
The consequence of non‑observance will be addressed when questions 2 and 3 are under consideration.
25. For present purposes, it seems clear that the bilingual record‑keeping and the printing and publication requirements of s. 23 of the Manitoba Act, 1870 and s. 133 of the Constitution Act, 1867 are mandatory in the sense that they were meant to be obeyed.
26. Section 23 of the Manitoba Act, 1870, provides that both English and French "shall be used in the ... Records and Journals" of the Manitoba Legislature. It further provides that "[t] he Acts of the Legislature shall be printed and published in both those languages". Section 133 of the Constitution Act, 1867 , is strikingly similar. It provides that both English and French "shall be used in the respective Records and Journals" of Parliament and the Legislature of Quebec. It also provides that "[t] he Acts of the Parliament of Canada and the Legislature of Quebec shall be printed and published in both those Languages".
27. As used in its normal grammatical sense, the word "shall" is presumptively imperative. See Odgers' Construction of Deeds and Statutes (5th ed. 1967) at p. 377; The Interpretation Act, 1867 (Can.), 31 Vict., c. 1, s. 6(3); Interpretation Act, R.S.C. 1970, c. I‑23, s. 28 ("shall is to be construed as imperative"). It is therefore incumbent upon this Court to conclude that Parliament, when it used the word "shall" in s. 23 of the Manitoba Act, 1870 and s. 133 of the Constitution Act, 1867 , intended that those sections be construed as mandatory or imperative, in the sense that they must be obeyed, unless such an interpretation of the word "shall" would be utterly inconsistent with the context in which it has been used and would render the sections irrational or meaningless. See, e.g. Re Public Finance Corp. and Edwards Garage Ltd. (1957), 22 W.W.R. 312, p. 317 (Alta. S.C.)
28. There is nothing in the history or the language of s. 23 of the Manitoba Act, 1870 or s. 133 of the Constitution Act, 1867 to indicate that "shall" was not used in its normal imperative sense. On the contrary, the evidence points ineluctably to the conclusion that the word "shall" was deliberately and carefully chosen by Parliament for the express purpose of making the bilingual record‑keeping and printing and publication requirements of those sections obligatory. In particular, Parliament's use of the presumptively imperative word "shall" twice in s. 23 of the Manitoba Act, 1870 and twice in s. 133 of the Constitution Act, 1867 contrasts starkly with its use of the presumptively permissive word "may" twice in the same sections. Section 23 provides that either English or French "may be used" by anyone in the debates of the Manitoba Legislature and that either language "may be used" by anyone in the Manitoba courts. Similarly, s. 133 provides that either English or French "may be used" by anyone in the debates of Parliament and the Legislature of Quebec, and in the courts of Canada and Quebec.
29. The French versions of both sections leave no doubt that the choice of these contrasting terms was deliberate. In the French version of s. 23, "shall" appears as "sera obligatoire" and "seront", while "may" appears as "sera facultatif" and "pourra être ... à faculté". Similarly, in the French version of s. 133, "shall" is expressed as "sera obligatoire" at one point, and as "devront être" at another, while "may" is expressed as "sera facultatif" in the first clause in which it appears and as "pourra être ... à faculté" in the second.
30. In Blaikie v. Attorney General of Quebec (1978), 85 D.L.R. (3d) 252 (Que. S.C.), at p. 260, Deschênes C.J.S.C. had this to say about the may/shall dichotomy in s. 133 of the Constitution Act, 1867 :
The Imperial Parliament has passed s. 133 with, from all evidence, extreme care and even the most mildly attentive observer cannot help but be struck by the alternation of the means of expression that are found in considering the use of the two languages: first part, `Either ... may'; second part, `Both ... shall'; third part, `Either ... may'; fourth part, `Shall ... both'.
The Court is totally incapable of finding in the second part of s. 133 justification for the alternates or the sequence of the languages that the Attorney‑General of Quebec suggests can be read there: this is not one or the other language as a choice, but the two at the same time which must be used in the records and journals of the Legislature.
(Emphasis added.)
See also Jones v. Attorney General of New Brunswick, [1975] 2 S.C.R. 182, at pp. 192‑93.
31. If more evidence of Parliament's intent is needed, it is necessary only to have regard to the purpose of both s. 23 of the Manitoba Act, 1870 and s. 133 of the Constitution Act, 1867 , which was to ensure full and equal access to the legislatures, the laws and the courts for francophones and anglophones alike. The fundamental guarantees contained in the sections in question are constitutionally entrenched and are beyond the power of the provinces of Quebec or Manitoba to amend unilaterally: Blaikie No. 1, supra; Attorney General of Manitoba v. Forest, supra. Those guarantees would be meaningless and their entrenchment a futile exercise were they not obligatory.
32. That this was recognized by the drafters of s. 133 , after which s. 23 was modeled, is clear from the former section's legislative history. Early drafts of s. 133 used the permissive word "may". This generated considerable concern and comment during the Confederation Debates, and in the third draft of s. 133 in February 1867 the word "may" was replaced by the word "shall" in the provision regarding the use of both languages in the records and journals of Parliament and the Legislature of Quebec. In the final draft of s. 133 of the British North America Act, 1867 (as it was then called) the provision for printing and publication of all laws in both languages was added, the word "shall" again being used.
33. The conclusion seems inescapable that the drafters of the Constitution Act, 1867 deliberately selected the imperative term "shall" in preference to the permissive term "may" because they intended s. 133's language guarantees to be just that‑‑guarantees. And the use by Parliament only three years later of nearly identical language in s. 23 of the Manitoba Act, 1870 is strong evidence of a similar intendment with regard to the language provisions of that Act. The requirements of s. 133 of the Constitution Act, 1867 and of s. 23 of the Manitoba Act, 1870 respecting the use of both English and French in the Records, Journals and Acts of Parliament and the Legislatures of Quebec and Manitoba are "mandatory" in the normally accepted sense of that term. That is, they are obligatory. They must be observed.
34. Nonetheless, it has been argued by the Attorney General of Manitoba that, though the words of s. 23 of the Manitoba Act, 1870 and s. 133 of the Constitution Act, 1867 are mandatory in the common grammatical sense, they are only directory in the legal sense and, thus, laws in violation of these provisions will not necessarily be invalid. He states in his factum:
The Courts have drawn a distinction between requirements which are said to be "directory" and those which are said to be "mandatory". The terminology used has not always been consistent and mandatory requirements have been referred to as "imperative" or "obligatory". Non‑compliance with a directory requirement does not result in what was done having no effect whereas if a mandatory requirement is not complied with all of what is done is a nullity.
The Attorney General goes on to argue that the requirements of s. 23 of the Manitoba Act, 1870 and s. 133 of the Constitution Act, 1867 , are directory rather than mandatory.
35. A distinction between statutory provisions that are mandatory in the sense that failure to comply with them will lead to invalidity of the act in question, and directory, in the sense that failure to comply will not necessarily lead to such invalidity, is one that is found in Anglo‑Canadian law. The most commonly cited formulation is Sir Arthur Channell's in Montreal Street Railway Co. v. Normandin, [1917] A.C. 170 (P.C.), at pp. 174‑75:
The question whether provisions in a statute are directory or imperative has very frequently arisen in this country, but it has been said that no general rule can be laid down and that in every case the object of the statute must be looked at .... When the provisions of a statute relate to the performance of a public duty and the case is such that to hold null and void acts done in neglect of this duty would work serious general