The constitution of Canada and the official status of French in Alberta.

• Author: Aunger, Edmund A.

New research shows that the Rupert's Land and North-Western Territory Order, an integral part of the Constitution of Canada, effectively guarantees the official status of the French language in Alberta. On July 2, 2008, the Provincial Court of Alberta confirmed this conclusion when it ruled, in the Caron case, that the Traffic Safety Act was invalid because it had not been passed in French. (The Crown is currently appealing this ruling in the Court of Queen's Bench.) In this article, an expert witness in the Caron case summarizes his research findings.

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On February 25, 1988, the Supreme Court of Canada recognized, in the Mercure decision, that French was an official language in Saskatchewan, and, as a consequence, in Alberta, under section 110 of The North-West Territories Act, passed for the first time in 1877. This section provided 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 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: ... This language provision was still in effect in 1905, when the Parliament of Canada created the provinces of Saskatchewan and Alberta from the North-West Territories. Section 16 of the two constitutional acts--The Saskatchewan Act and The Alberta Act--provided for legislation in effect at the time to be maintained, to be eventually amended "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 ...", with the exception of legislation passed in Great Britain. During the debate on The Alberta Act, Charles Fitzpatrick, the Minister of Justice at the time, confirmed that, given that section 110 was still in effect, "it would be the law as they will have it in the province after this constitutional Act is passed". (1)

Nevertheless, in 1988, the Supreme Court also held that The North-West Territories Act was not an integral part of the Constitution of Canada, and that the province was therefore able to amend it unilaterally--on the condition that amendments be made in French and English. Armed with this information, the governments of Alberta and Saskatchewan each lost no time in passing a language act in both languages that repealed section 110, thereby removing the official status of French in their provinces. James Horsman, the Attorney General of the province of Alberta, explained:

Mr. Speaker, we are dealing with the reality of the fact that the Mercure decision has said that an Act passed in 1886--which had never been used in this province, never been implemented, had fallen into complete disuse in the Northwest Territories prior to Alberta becoming a province in 1905--is still the law because of a technicality ... We have now been told by the Supreme Court of Canada how we must proceed in order to change that antiquated, unused piece of legislation which was a hangover from 1886. (2) This claim that the Constitution of Canada does not protect the official status of the French language in Alberta and Saskatchewan is born of a profound misunderstanding of the historical origins and the constitutional foundations of linguistic duality in Canada. Unfortunately, a number of historians have perpetuated this misunderstanding by claiming that section 110 was a singular event, a chance accident, with no rhyme and no reason. The great historian Donald Creighton, for example, suggests that section 110 was proposed in 1877 by a Conservative senator acting on his own initiative and accepted by the Liberal government acting against its better instincts. He writes that the decision to grant official status to the French language in the North-West Territories was "hasty and ill-considered" and "characterized throughout by accident and improvisation". (3) He goes further: "this attempt to fix the political institutions of the west before immigration and the growth of population had determined its true and permanent character was a mistake for which the whole of Canada paid dearly".

In my view, if there are mistakes for which Canada has paid dearly, they do not lie in the official bilingualism instituted by political leaders, but in the pernicious distortions propounded by great historians. Section 110 is nothing less than the tip of the iceberg, the visible evidence of a deeper and more substantial linguistic duality in the Canadian West. My research shows that French had official language status in the vast territories of the West and the North since 1835, a status...