Manitoba Language Rights Reference, (1985) 59 N.R. 321 (SCC)

• Judge: Dickson, C.J.C., Beetz, Estey, McIntyre, Lamer, Wilson and Le Dain, JJ.
• Court: Supreme Court (Canada)
• Case Date: June 13, 1985
• Jurisdiction: Canada (Federal)
• Citations: (1985), 59 N.R. 321 (SCC);19 DLR (4th) 1;59 NR 321;[1985] 4 WWR 385;JE 85-603;35 Man R (2d) 83;[1985] SCJ No 36 (QL);31 ACWS (2d) 299;[1985] 1 SCR 721;[1985] ACS no 36;1985 CanLII 33 (SCC)

Man. Language Rights Ref. (1985), 59 N.R. 321 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Manitoba Language Rights Reference

Indexed As: Manitoba Language Rights Reference

Supreme Court of Canada

Dickson, C.J.C., Beetz, Estey, McIntyre, Lamer, Wilson and Le Dain, JJ.

June 13, 1985.

Summary:

Section 23 of the Manitoba Act, 1870 provided that "The Acts of the Legislature shall be printed and published in both" English and French. After Manitoba entered Confederation the statutes of Manitoba were not printed or published in French. In 1890 the Official Language Act, S.M. 1890, c. 14, made English the official language of Manitoba and provided that the Manitoba statutes need only be printed and published in English. In the 1970's when the issue of French language rights in Manitoba arose in earnest, the Official Language Act was declared unconstitutional by the Supreme Court of Canada in Forest v. Attorney General of Manitoba, [1979] 2 S.C.R. 1032; 30 N.R. 213. Manitoba then passed an Act Respecting the Operation of Section 23 of the Manitoba Act In Regard to Statutes, S.M. 1980, c. 3, which attempted to circumvent the effects of the ruling of the Supreme Court of Canada, and left English the dominant language. Only in 1982 did Manitoba begin to enact, print and publish statutes in both English and French.

The question of whether s. 23 of the Manitoba Act, 1870 was mandatory and, if so, the effect on the validity of the statutes of Manitoba was referred to the Supreme Court of Canada.

The Supreme Court of Canada held that s. 23 of the Manitoba Act was mandatory and that all of the statutes of Manitoba since Manitoba entered Confederation, which were not enacted, printed and published in both English and French were invalid. To avoid the resulting disastrous legal vacuum in Manitoba the court deemed the statutes temporarily valid for the minimum period of time necessary for their translation, re-enactment, printing and publication. The court also ruled that ss. 1-5 of the 1980 Act were invalid.

Constitutional Law - Topic 61

Conventions - General - The Supreme Court of Canada stated that in the process of constitutional adjudication the court may consider unwritten postulates, which form the very foundation of the Constitution of Canada, including the principles of federalism and the Rule of Law - See paragraphs 66, 105.

Constitutional Law - Topic 114

Rule of Law - The Supreme Court of Canada discussed the principle of the Rule of Law, which is one of the unwritten postulates forming the foundation of the Constitution of Canada - The court declared the statutes of Manitoba invalid, because they were not passed in both French and English, and applied the principle of the Rule of Law in deeming the statutes to be temporarily valid for the minimum period necessary to translate them into French in order to avoid a disastrous legal vacuum - The court used the de facto doctrine and the doctrine of state necessity to justify the deeming of temporary validity to preserve the Rule of Law - See paragraphs 55 to 112.

Constitutional Law - Topic 115

De facto doctrine - The Supreme Court of Canada ruled that the statutes of Manitoba were invalid, because they were not passed in both English and French - The court, in deeming the statutes to be temporarily valid for the minimum period necessary for translation and to protect past rights and obligations and other effects of the invalid laws, explained and applied the de facto doctrine as a means of preserving the Rule of Law and avoiding a disastrous legal vacuum - See paragraphs 75 to 81.

Constitutional Law - Topic 116

State necessity doctrine - The Supreme Court of Canada ruled that the statutes of Manitoba were invalid, because they were not passed in both English and French - The court, in deeming the statutes to be temporarily valid for the minimum period necessary for translation and to protect past rights and obligations and other effects of the invalid laws, explained and applied the state necessity doctrine as a means of preserving the Rule of Law and avoiding a disastrous legal vacuum - See paragraphs 85 to 112.

Constitutional Law - Topic 1002

Constitution Act - Interpretation - Courts' duty to preserve and protect Constitution - The Supreme Court of Canada held that the judiciary has a duty to preserve and protect the Constitution - See paragraphs 47 to 54, 68.

Constitutional Law - Topic 2521

Determination of validity of statutes - Effect of invalidity - General principles - The Supreme Court of Canada held that the statutes of Manitoba were invalid, because they were not passed in both English and French as required by s. 23 of the Manitoba Act, 1870 - See paragraphs 45 to 54.

Constitutional Law - Topic 2523

Determination of validity of statutes - Effect of invalidity - Acts done prior to declaration of invalidity - The Supreme Court of Canada declared all the statutes of Manitoba from 1870 onward to be invalid, because they were not passed in English and French - The court applied the de facto doctrine and the doctrine of state necessity in protecting the rights, obligations and other effects of the laws up to the present - The court stated further that doctrines such as res judicata and mistake of law would prevent attacks on other rights and obligations determined under the invalid laws - See paragraphs 55 to 112.

Constitutional Law - Topic 2525

Determination of validity of statutes - Effect of invalidity - Avoidance of legal vacuum - The Supreme Court of Canada held that the statutes of Manitoba were invalid, because they were not passed in both English and French as required by s. 23 of the Manitoba Act, 1870 - The court recognized that its ruling could create a disastrous legal vacuum in Manitoba and so to preserve the Rule of Law deemed the statutes temporarily valid for the minimum period necessary for their translation - With regard to the period prior to the declaration of invalidity the court applied the de facto doctrine and the doctrine of state necessity - See paragraphs 55 to 112.

Constitutional Law - Topic 2761

Determination of validity of statutes - Severability - General - The Supreme Court of Canada declared portions of a statute unconstitutional and invalid and severed them from the valid balance of the statute - See paragraph 147.

Constitutional Law - Topic 7781

Language rights - Manitoba Act - General - S. 23 of the Manitoba Act, 1870 provided that "the Acts of the Legislature shall be printed and published in both" English and French - Since 1870 substantially all legislation was printed and published in English only - The Supreme Court of Canada held that s. 23 was mandatory and that all statutes not passed in both languages were invalid - See paragraphs 45 to 54 - The court held that under s. 23 statutes must be simultaneously enacted in both languages and it was not sufficient to subsequently translate a statute into one language or the other - See paragraphs 118 to 148.

Statutes - Topic 1644

Interpretation - Extrinsic aids - Legislative history - Legislative debates - The Supreme Court of Canada considered the Confederation Debates on the wording of s. 133 of the Constitution Act, 1867, in construing s. 133 - See paragraphs 32 to 33.

Statutes - Topic 1645

Interpretation - Extrinsic aids - Legislative history - Draft bills - The Supreme Court of Canada considered drafts of s. 133 of the Constitution Act, 1867, in construing the meaning of s. 133 - See paragraphs 32 to 33.

Statutes - Topic 1803

Interpretation - Extrinsic aids - Other statutes - Bilingual statutes - Interpretation of both versions - The Supreme Court of Canada considered the French versions of s. 133 of the Constitution Act, 1867 and s. 23 of the Manitoba Act, 1870 in construing the meaning of the sections - See paragraph 29.

Statutes - Topic 1831

Interpretation - Intrinsic aids - Preamble - General - The Supreme Court of Canada considered the preambles of the Constitution Acts, 1867 and 1982, in determining that the Rule of Law was one of the unwritten principles of the Canadian Constitution - See paragraphs 63 to 66.

Statutes - Topic 4985

Operation and effect - Enabling acts - Power coupled with duty - Permissive power - "May" - General - The Supreme Court of Canada held that the word "may" was a presumptively permissive word - See paragraph 28.

Statutes - Topic 5126

Operation and effect - Enabling acts - Obligatory, mandatory, imperative and absolute acts - Mandatory power - What constitutes - "Shall" - S. 23 of the Manitoba Act, 1870 and s. 133 of the Constitution Act, 1867 provided that statutes "shall be printed and published in both" English and French - The Supreme Court of Canada held that "shall" was presumptively mandatory and that ss. 23 and 133 required the enactment of statutes in both languages - See paragraphs 23 to 40.

Statutes - Topic 5128

Operation and effect - Enabling acts - Obligatory, mandatory, imperative and absolute acts - Failure to comply with mandatory act - Effect of - The Supreme Court of Canada held that s. 23 of the Manitoba Act, 1870 required the enactment of statutes in both English and French and that statutes not enacted in both languages were invalid - See paragraphs 45 to 54.

Statutes - Topic 5130

Operation and effect - Enabling acts - Obligatory, mandatory, imperative and absolute acts - Whether mandatory enactment is obligatory or directory only - The Supreme Court of Canada held that the mandatory-directory distinction was inapplicable to constitutional provisions - See paragraphs 34 to 39.

Cases Noticed:

Pellant v. Hebert (1892), 12 R.G.D. 242, refd to. [para. 10].

Bertrand v. Dussault (1909), reproduced in Re Forest and Registrar of Court of Appeal of Manitoba (1977), 77 D.L.R.(3d) 445 (Man. C.A.), refd to. [para. 11].

R. v. Forest (1976), 74 D.L.R.(3d) 704 (Man. C.C.), refd to. [para. 12].

Forest v. Attorney General of Manitoba, [1979] 2 S.C.R. 1032; 30 N.R. 213, refd to. [para. 13].

Bilodeau v. Attorney General of Manitoba, [1981] 5 W.W.R. 393; 10 Man.R.(2d) 298, refd to. [para. 17].

Blaikie v. Attorney General of Quebec, [1979] 2 S.C.R. 1016; 30 N.R. 225, consd. [paras. 19, 124].

Société Asbestos Limitée v. Société Nationale de l'Amiante, [1979] C.A. 342, refd to. [paras. 20, 53].

Attorney General of Quebec v. Blaikie, [1981] 1 S.C.R. 312; 36 N.R. 120, refd to. [para. 21].

Re Public Finance Corp. and Edwards Garage Ltd. (1957), 22 W.W.R.(N.S.) 312 (Alta. S.C.), refd to. [para. 27].

Blaikie v. Attorney General of Quebec (1978), 85 D.L.R.(3d) 252 (Que. S. C.), consd. [paras. 30, 127].

Jones v. Attorney General of New Brunswick, [1975] 2 S.C.R. 182, refd to. [para. 30].

Montreal Street Railway Co. v. Normandin, [1917] A.C. 170 (P.C.), consd. [para. 35].

R. ex. rel. Anderson v. Buchanan (1909), 44 N.S.R. 112 (C.A.), consd. [para. 36].

Bribery Commissioner v. Ranasinghe, [1965] A.C. 172, consd. [paras. 38, 53].

Amax Potash Ltd. et al. v. Government of Saskatchewan, [1977] 2 S.C.R. 576; 11 N.R. 222, appld. [paras. 49, 82].

Constitutional Amendment Reference (1981), [1981], 1 S.C.R. 753; 39 N.R. 1, refd to. [para. 49].

Procureur general du Quebec v. Collier, [1983] C.S. 366, refd to. [para. 53].

Procureur general du Quebec v. Brunet, J.E. 83-510, revsd on other grounds, J.E. 84-62 (Que. S.C.), refd to. [para. 53].

H.L. Carl Zeiss-Stiftung v. Rayner and Keeler Ltd. (No. 2), [1966] 2 All E.R. 536 (H.L.), refd to. [para. 60].

Roncarelli v. Duplessis, [1959] S.C.R. 121, appld. [para. 63].

Reference re Disallowance and Reservation, [1938] S.C.R. 71, refd to. [paras. 69, 70].

Abbe de Fontaine's Case (1413), Y.B. 9 H. 6, f. 32, refd to. [para. 77].

Scadding v. Lorant (1851), 3 H.L.C. 418; 10 E.R. 164 (H.L.), refd to. [para. 77].

R. v. Slythe (1827), 6 B. & C. 240; 108 E.R. 441, refd to. [para. 77].

Margate Pier Co. v. Hannam (1819), 3 B. & Ald. 266; 106 E.R. 661, refd to. [para. 77].

O'Neil v. Attorney-General of Canada (1896), 26 S.C.R. 122, consd. [para. 78].

Turtle v. Township of Euphemia (1900), 31 O.R. 404, refd to. [para. 78].

R. v. Gibson (1896), 29 N.R. 4, refd to. [para. 78].

R. v. Bedford Level Corporation (1805), 6 East 356; 102 E.R. 1323, consd. [para. 79].

Parker v. Kett (1702), 1 Ld. Raym. 658; 91 E.R. 1338, refd to. [para. 79].

Eadie v. Township of Brantford, [1967] S.C.R. 573, refd to. [para. 82].

Texas v. White (1868), 74 U.S. 700, consd. [para. 86].

Horn v. Lockhart (1873), 84 U.S. 570, consd. [para. 86].

United States v. Insurance Companies (1874), 89 U.S. 99, consd. [para. 86].

Baldy v. Hunter (1898), 171 U.S. 388, consd. [para. 86].

Madzimbamuto v. Lardner-Burke, [1969] 1 A.C. 645 (P.C.), consd. [para. 88].

Attorney General of the Republic v. Ibrahim, [1964] Cyprus L.R. 195, consd. [para. 91].

Special Reference No. 1 of 1955, P.L.R. 1956 W.P. 598, consd. [para. 98].

Federation of Pakistan v. Khan, P.L.R. 1956 W.P. 306, consd. [para. 100].

In re Initiative and Referendum Act, [1919] A.C. 935 (P.C.), refd to. [para. 137].

Attorney-General for Alberta v. Attorney-General for Canada, [1947] A.C. 503 (P.C.), refd to. [para. 138].

Statutes Noticed:

Act Respecting the Operation of Section 23 of the Manitoba Act in Regard to Statutes, S.M. 1980, c. 3 [paras. 119, 120].

Colonial Laws Validity Act, 1865 (Imp.), 28 & 29 Vict., c. 63, sect. 2 [para. 50].

Constitution Act, 1867, preamble [para. 63], sect. 55, sect. 57, sect. 90 [para. 69]; sect. 133 [para. 4].

Constitution Act, 1982, preamble [para. 63]; sect. 18(1) [para. 127]; sect. 52(1) [para. 50].

Interpretation Act, S.C. 1867, c. 1, sect. 6(3) [para. 27].

Interpretation Act, R.S.C. 1970, c. I-23, sect. 28 [para. 27].

Manitoba Act, 1870, sect. 23 [para. 3], sect. 2 [para. 69].

Official Languages Act, S.M. 1890, c. 14 [para. 8].

Authors and Works Noticed:

Constantineau, Albert, De Facto Doctrine (1910), pp. 3-4 [para. 76], 5-6 [para. 76]; 20 [para. 78].

Dicey, Law of the Constitution (10th Ed. 1959), p. 183 [para. 63].

Honore, A.M., [1967] Irish Jurist. 269 [para. 77].

Jennings, I., Law and the Constitution (5th Ed. 1959), p. 43 [para. 60].

Odgers, Construction of Deeds and Statutes (5th Ed. 1967), p. 377 [para. 27].

Raz, Authority of Law (1979), pp. 212-213 [para. 62].

Stavsky, Doctrine of State Necessity in Pakistan (1983), 16 Cornell Int. L.J. 341, p. 344 [para. 85].

Wade and Phillips, Constitutional and Administrative Law (9th Ed. 1977), p. 89 [para. 60].

Counsel:

Pierre Genest, Q.C., Edward R. Sojonky, Q.C., and Peter W. Hogg, for the Attorney General of Canada;

Joseph Eliot Magnet, for the Societe Franco-Manitobaine;

Gerald-A. Beaudoin, Q.C., for the Federation des Francophones hors Quebec;

Jean-K. Samson and Andre Binette, for the Attorney General of Quebec;

Vaughan L. Baird, Q.C., for Roger Bilodeau;

Stephen A. Scott and Warren J. Newman, for Alliance Quebec;

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, Ruxssell Doern, Herbert Schulz and Patricia Maltman.

This case was heard on June 11-13, 1984, at Ottawa, Ontario, before Dickson, C.J.C., Beetz, Estey, McIntyre, Lamer, Wilson and Le Dain, JJ., of the Supreme Court of Canada.

On June 13, 1985, the following judgment of the Court was delivered: