Bilodeau v. Manitoba (Attorney General), (1981) 10 Man.R.(2d) 298 (CA)

• Judge: Freedman, C.J.M., Monnin and Hall, JJ.A.
• Court: Court of Appeal (Manitoba)
• Case Date: July 07, 1981
• Jurisdiction: Manitoba
• Citations: (1981), 10 Man.R.(2d) 298 (CA)

Bilodeau v. Man. (A.G.) (1981), 10 Man.R.(2d) 298 (CA)

MLB headnote and full text

Bilodeau v. Attorney General of Manitoba

Indexed As: Bilodeau v. Manitoba (Attorney General)

Manitoba Court of Appeal

Freedman, C.J.M., Monnin and Hall, JJ.A.

July 7, 1981.

Summary:

The accused was charged with speeding contrary to the Highway Traffic Act and was served with a summons, printed in English only, under the Summary Convictions Act. Both statutes were enacted, printed and published in English only. Section 23 of the Manitoba Act 1870 stated that court processes could be in either English or French and that Acts of the Legislature shall be printed and published in both English and French. The accused submitted that the summons should have been in French as well as English and that both statutes were invalid because they contravened s. 23 of the Manitoba Act and could not therefore sustain a conviction.

The Provincial Court judge convicted the accused and in a judgment reported, [1981] 1 W.W.R. 474, dismissed the accused's preliminary motion for dismissal on the above grounds, holding that s. 23 of the Manitoba Act was invalid and even if it was valid, was directory not mandatory.

The accused appealed.

The Manitoba Court of Appeal dismissed the appeal and affirmed the conviction. The Court of Appeal held that s. 23 of the Manitoba Act was directory, so the Highway Traffic Act and Summary Convictions Act were valid and that, because s. 23 provided for court processes in either language, the summons was proper. Monnin, J.A., dissenting, in paragraphs 29 and 53 below, held that s. 23 was mandatory, but that he was not prepared to declare invalid substantially all Manitoba legislation, which since 1870 was enacted, printed and published in English only.

The following summary was attached to the Court of Appeal judgment:

"The Questions referred to the court by way of a case stated by Chief Provincial Judge Gyles are as follows:

1. Did I err in law in deciding that the general validation of the Manitoba Act of 1870 by the British North America Act of 1871 could not effectually amend Section 133 of the British North America Act of 1867 respecting the use of the English or French languages.

2. Did I err in law in deciding that even if Section 23 of the Manitoba Act of 1870 dealing with the printing and publishing of Acts of the Legislature in both the English and French languages were valid, then such a requirement would be directory only and not mandatory.

3. Did I err in law in convicting the accused of speeding when the summons issued under the Summary Convictions Act and the Highway Traffic Act are (sic) printed and published only in the English language.

"The Answers to the Stated Questions are as follows:

Freedman, C.J.M.:

Question 1 - Not answered

Question 2 - No

Question 3 - No

Monnin, J.A.:

Question 1 - Yes

Question 2 - Yes

Question 3 - No

Hall, J.A. :

Question 1 - Yes

Question 2 - No

Question 3 - No."

Constitutional Law - Topic 7781

Language rights - Manitoba Act 1870 - Section 23 of the Manitoba Act 1870 stated that "the Acts of the Legislature shall be printed and published in both those (English and French) languages" - Since 1870 substantially all legislation was printed and published in English only - The Manitoba Court of Appeal held that s. 23 was directory, not mandatory, so did not affect the validity of legislation in English only - See paragraphs 17 and 64 - Monnin, J.A., dissenting in part, held that s. 23 was mandatory, but that he was not prepared to declare invalid all legislation printed and published in English only since 1870 - See paragraph 49.

Constitutional Law - Topic 7781

Language rights - Manitoba Act 1870 - Section 23 of the Manitoba Act stated that either French or English could be used in a court process - The accused was served with a summons printed in English only - The accused submitted the summons should have been in French as well as English - The Manitoba Court of Appeal held that the summons was proper, because s. 23 of the Manitoba Act did not require court procedures to be in French and English - See paragraphs 26, 50, 51 and 64.

Statutes - Topic 5126

Operation and effect - Mandatory acts - The Manitoba Court of Appeal stated that one test to determine if legislation is mandatory or directory is the degree of hardship, difficulty or public inconvenience that would result if the legislation was mandatory - The court stated that the rationale for the test was that the legislature could not have intended widespread chaos to be the consequence of noncompliance, so to avoid chaos the court would impute the legislative intent to be directory, not mandatory - See paragraph 17.

Statutes - Topic 5128

Operation and effect - Mandatory acts - Effect of failure to comply with - Section 23 of the Manitoba Act 1870 stated that legislation "shall" be in French and English - Substantially all Manitoba legislation was in English only - The accused was charged and prosecuted under statutes which were in English only - The accused submitted that the statutes were invalid, because they contravened s. 23 of the Manitoba Act - Monnin, J.A., of the Manitoba Court of Appeal, dissenting in part, that s. 23 was mandatory and that the statutes contravened it, but that he was not prepared to declare them and substantially all other Manitoba legislation invalid - See paragraphs 29 to 53.

Cases Noticed:

Forest v. Attorney General of Manitoba and Attorney General of Canada (Intervenor), [1972] 2 S.C.R. 1032; [1980] 2 W.W.R. 758; 30 N.R. 213; 2 Man.R.(2d) 109, affirming [1979] 4 W.W.R. 229, consd. [paras. 1, 11, 21, 34, 36, 56, 58].

Forest v. Registrar of Court of Appeal of Manitoba, [1977] 5 W.W.R. 347, consd. [para. 7].

Howard v. Bodington (1877), 2 P.D. 203, consd. [para. 13].

Liverpool Borough Bank v. Turner (1860), 30 L.J. Ch. 379, consd. [para. 14].

Caldow v. Pixell (1877), 2 C.P.D. 562, consd. [para. 15].

Montreal Street Railway Co. v. Normandin, [1917] A.C. 170, consd. [para. 15].

R. v. Sheer Metalcraft Ltd., [1954] 1 Q.B. 586, refd to. [para. 16].

F. v. F., [1970] 1 All E.R. 200, refd to. [para. 16].

P. v. P. and J., [1971] 1 All E.R. 616, refd to. [para. 16].

Clayton v. Heffron (1960), 105 C.L.R. 214, refd to. [para. 16].

McPherson v. McPherson, [1935] All E.R. 105, refd to. [para. 16].

Attorney General of Quebec v. Blaikie et al., [1979] 2 S.C.R. 1016; 30 N.R. 225, consd. [para. 33].

Société Asbestos Limitée v. Societe Nationale de l'Amiante et Procureur Général de la Province de Québec, [1979] C.A. 342, consd. [para. 35].

R. v. Smith, [1980] 3 W.W.R. 591; 5 Man.R.(2d) 250, dist. [para. 46].

Joyal v. Air Canada et al., [1976] C.S. 1211, refd to. [para. 47].

Statutes Noticed:

B.N.A. Act 1867, sect. 133 [para. 32].

B.N.A. Act 1871 [para. 1].

An Act Respecting the Operation of Section 23 of the Manitoba Act in regard to Statutes, S.M. 1980, c. S-207 [para. 1].

Highway Traffic Act, R.S.M. 1970, c. H-60 [para. 4].

Manitoba Act, S.C. 1870, c. 3; R.S.M. 1970, vol. 4, App. B., p. 80, sect. 23 [para. 3].

Official Language Act, R.S.M. 1970, c. O-10 [para. 1].

Summary Convictions Act, R.S.M. 1970, c. S-230 [para. 4].

Counsel:

V.L. Baird, Q.C., for the appellant;

A.K. Twaddle, Q.C., and W. Myshkowsky, for the respondent, Attorney General of Manitoba;

J.A. Schollin, Q.C., and L.J. Roy, for the intervenant, Attorney General of Canada.

This appeal was heard on February 23, 1981, by FREEDMAN, C.J.M., MONNIN and HALL, JJ.A., of the Manitoba Court of Appeal.

On July 7, 1981, the judgment for the Court of Appeal was delivered and the following opinions were filed:

FREEDMAN, C.J.M. - see paragraphs 1 to 28;

MONNIN, J.A., dissenting in part - see paragraphs 29 to 53;

HALL, J.A. - see paragraphs 54 to 64.