R. v. Caron (G.), 2009 ABQB 745

• Judge: Eidsvik, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: December 16, 2009
• Citations: 2009 ABQB 745;(2009), 476 A.R. 198 (QB)

R. v. Caron (G.) (2009), 476 A.R. 198 (QB)

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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Temp. Cite: [2010] A.R. TBEd. JA.026

Her Majesty the Queen (appellant) v. Gilles Caron and Pierre Boutet (respondents) and Association canadienne-française de l'Alberta and Assemblée communautaire fransaskoise Inc. (intervenors)

(040241291S4; 2009 ABQB 745)

Indexed As: R. v. Caron (G.)

Alberta Court of Queen's Bench

Judicial District of Edmonton

Eidsvik, J.

December 16, 2009.

Summary:

The accused's mother tongue was French. He was charged with an offence under the Traffic Safety Act (Alta.) and its Use of Highways and Rules of the Road Regulations. This legislation was enacted, printed and published in English only by virtue of s. 3 of the Languages Act (Alta.). In his defence, the accused argued that his constitutional language rights were violated because the relevant legislation was not published in French. The accused filed a Notice of a Constitutional Question and sought the following remedies: (1) a declaration under s. 52 of the Constitution Act, 1982, that the Languages Act, in as much as it abolished or diminished language rights previously existing under s. 110 of the Northwest Territories Act, was incompatible with the Constitution of Canada and was inoperative; (2) an order under s. 24(1) of the Charter setting aside the charge against the accused; (3) a declaration under s. 52 of the Constitution Act that the Alberta Legislature was obliged to enact all its Acts and Regulations in French, beginning with the Traffic Safety Act, the Use of Highways and Rules of the Road Regulations, the Provincial Court Act and Constitutional Notice Regulation; and (4) a declaration under s. 52 of the Constitution Act that all persons had a constitutionally guaranteed right to proceedings in French or English in criminal and civil matters before all Alberta courts, including the right to file all forms and documents in French and to be heard and understood in French by the courts, without an interpreter.

The Alberta Provincial Court, in a decision reported 450 A.R. 204, held that the accused's constitutional language rights were violated and found him not guilty of the offence under the Traffic Safety Act. The court indicated that it did not have jurisdiction to grant the declarations sought. The Crown appealed against the acquittal.

The Alberta Court of Queen's Bench allowed the appeal. There was no obligation, constitutionally or otherwise presently, to publish the Traffic Safety Act, or its regulations, or issue traffic tickets in French in Alberta. The accused's language rights were not violated. The court set aside the acquittal and found the accused guilty as charged.

Constitutional Law - Topic 5

General principles - Canadian constitution - What constitutes - Proclamations - On December 6, 1869, the Governor General of Canada issued a Royal Proclamation assuring the inhabitants of Rupert's Land and the North-Western Territory that, upon the union of these territories with Canada, all of the inhabitants' "civil and religious rights and privileges" would be respected - The Alberta Court of Queen's Bench held that this Royal Proclamation was not a constitutional document and had no force of law - Rupert's Land and the North-Western Territory were settled territories as opposed to conquered or ceded lands - Therefore, the Crown did not have in the present case the power to legislate by proclamation except to exercise its constituent power, which it did not do - In addition, the Proclamation was never passed into law by the British Parliament nor was it listed among the constitutional documents recognized in Canada by virtue of s. 52(2) of the Constitution Act, 1982 (U.K.) - See paragraphs 145 to 189.

Constitutional Law - Topic 6

General principles - Constitutional rights - Status of - In 1867, the Senate and the House of Commons of Canada issued an address under the Constitution Act, 1867 (the 1867 Address) asking the Queen to admit Rupert's Land and the North-Western Territory into Confederation - The 1867 Address was issued in both French and English - In 1870, Her Majesty in Council (U.K.) issued an order admitting Rupert's Land and the North-Western Territory into Confederation (the 1870 Order) - However, only the English version of the 1867 Address was appended as a Schedule to the 1870 Order - The Alberta Court of Queen's Bench held that only the English version of the 1867 Address had force of law as a constitutional document - It was the only version that had been approved by the Queen - See paragraphs 215 to 222.

Constitutional Law - Topic 7703

Language rights - General principles - Source of language rights - The Alberta Court of Queen's Bench held that the inhabitants of Rupert's Land and the North-Western Territory had, prior to the annexation of that area to Canada, the statutory right to have local ordinances published in French and English - The ordinances enacted by the Hudson's Bay Company, which had governance over the area prior to annexation, concerning the use of French for the publication of ordinances created statutory obligations for the Company - However, the right to bilingual publication did not extend to all the legislation in effect in the area prior to annexation - This legislation included the general laws of England and the acts of the British Parliament, which were published only in English - See paragraphs 115 to 132.

Constitutional Law - Topic 7703

Language rights - General principles - Source of language rights - In 1867, the Senate and the House of Commons of Canada issued an address under the Constitution Act, 1867 (the 1867 Address) asking the Queen to admit Rupert's Land and the North-Western Territory into Confederation - The 1867 Address provided that the "legal rights" ("droits acquis" in the 1867 French version; "droits légaux" in the 1985 statutory revision) of any corporation, company or individual "shall be respected" - In 1869, the Governor General of Canada issued a Royal Proclamation assuring the inhabitants of Rupert's Land and the North-Western Territory that, upon the union of these territories with Canada, all of the inhabitants' "civil and religious rights and privileges" would be respected (the 1869 Proclamation) - In 1870, Her Majesty in Council (U.K.) issued an order admitting Rupert's Land and the North-Western Territory into Confederation (the 1870 Order) - The 1867 Address was appended as a Schedule to the 1870 Order - The 1870 Order provided that the Parliament of Canada would have full legislative authority over the territories and that admission of the territories into Confederation would be subject to certain terms and conditions - Condition 15 provided that the Governor in Council was "authorized and empowered to arrange any details that may be necessary to carry out the above terms and conditions" - In 1870, Canada enacted the Manitoba Act, which created and admitted Manitoba into Confederation - Section 23 of the Manitoba Act required bilingual publication of statutes - In 1905, Canada enacted the Alberta Act, which created Alberta out of the North-Western Territory and admitted it into Confederation - The Alberta Act did not contain a provision analogous to s. 23 of the Manitoba Act - In 1988, Alberta enacted s. 3 of the Languages Act, which provided that "[a]ll Acts and regulations may be enacted, printed and published in English" - In 2003, the accused was charged with violating the Traffic Act and regulations (Alta.), legislation enacted, printed and published only in English - In his defence, the accused argued that his constitutional language rights were violated because the Traffic Act and regulations were not enacted, printed and published in French - The trial judge accepted the argument and acquitted the accused - On appeal, the Alberta Court of Queen's Bench rejected the argument and found the accused guilty - While the inhabitants of Rupert's Land and the North-Western Territory had, prior to the annexation of that area to Canada, the statutory right to have local ordinances published in French and English, a right to the bilingual enactment, printing and publication of legislation was not constitutionally entrenched under the 1867 Address, the 1869 Proclamation and the 1870 Order - The expression "legal rights" in the 1867 address did not include language rights - The 1869 Proclamation was not a constitutional document and had no force and effect - The word "details" in Condition 15 of the 1870 Order did not include language rights - By contrast, s. 23 of the Manitoba Act constitutionally required that Manitoba legislation be enacted, printed and published in both languages - See paragraphs 133 to 262.

Evidence - Topic 510

Presentation of evidence - Rebuttal evidence - General principles - The accused was charged with violation of Alberta legislation that had been enacted, printed and published only in English - In defence, the accused argued that he had a constitutional right to legislation enacted, printed and published in both English and French - In rebuttal, and to counter the constitutional argument, the Crown provided an "impressive quantity" of documentary evidence - The trial judge granted the accused leave to adduce additional rebuttal evidence - However, the trial judge denied the Crown leave to recall its principal witness in the rebuttal where this would have amounted to the Crown reopening its case - The Crown appealed, complaining that the trial judge had wrongly allowed the accused to split his case - The Alberta Court of Queen's Bench rejected the complaint - The court agreed that (1) the accused would have suffered a flagrant injustice had he not been given the opportunity to respond to the Crown's evidence, (2) it would have been unfair to allow the Crown's motion - It was not shown that the trial judge had erred in exercising his discretion on whether to allow rebuttal and sur-rebuttal evidence - See paragraphs 264 to 276.

Statutes - Topic 1644

Interpretation - Extrinsic aids - Legislative history - Legislative debates - The Alberta Court of Queen's Bench made the general point that recourse by the trial judge to historical evidence was very important in a case such as the present one, in which the accused challenged as unconstitutional Alberta legislation that had been enacted, printed and published in English only - There was no question a judge could turn to official documents such as Debates of the House of Commons - Although Hansard could not be used as evidence of the truth of its contents, it could still be useful for the court to turn to such sources to establish the relevant background - See paragraphs 277 to 281.

Cases Noticed:

Housen v. Nikolaisen et al., [2002] 2 S.C.R. 235; 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1; 2002 SCC 33, refd to. [para. 31].

R. v. Good (O.P.) (2007), 447 A.R. 102; 2007 ABQB 696, refd to. [para. 31].

Sayer v. Sayer (1849), 68 E.R. 156, consd. [para. 38].

Mercure v. Saskatchewan, [1988] 1 S.C.R. 234; 83 N.R. 81; 65 Sask.R. 1, refd to. [para. 105].

R. v. Paquette (1987), 81 A.R. 12 (C.A.), affd. [1990] 2 S.C.R. 1103; 137 N.R. 232; 125 A.R. 388; 14 W.A.C. 388, refd to. [para. 105].

General Motors Assurance Corp. v. Perozni (1965), 52 W.W.R.(N.S.) 32 (Alta. Dist. Ct.), refd to. [para. 124].

R. v. Rottiers (R.) (1995), 134 Sask.R. 152; 101 W.A.C. 152 (C.A.), leave to appeal refused (1996), 203 N.R. 397; 144 Sask.R. 240; 124 W.A.C. 240 (S.C.C.), refd to. [para. 138].

Lefebvre v. Alberta (1993), 135 A.R. 338; 33 W.A.C. 338 (C.A.), leave to appeal refused [1993] 3 S.C.R. vii; 164 N.R. 159; 162 A.R. 15; 83 W.A.C. 15, refd to. [para. 138].

Easterbrook v. R., [1931] S.C.R. 210, refd to. [para. 160].

Campbell v. Hall (1774), 1 Lofft 655; 98 E.R. 1045 (K.B.), refd to. [para. 169].

British Columbia (Attorney General) v. Canada (Attorney General), [1994] 2 S.C.R. 41; 166 N.R. 81; 44 B.C.A.C. 1; 71 W.A.C. 1, refd to. [para. 206].

Prince Edward Island (Minister of Transportation and Public Works) v. Canadian National Railway Co., [1991] 1 F.C. 129; 110 N.R. 394 (F.C.A.), refd to. [para. 207].

Renaud, Ex parte (1873), 14 N.B.R. 273 (S.C.), consd. [para. 224].

Société des Acadiens du Nouveau-Brunswick Inc. et al. v. Minority Language School Board No. 50 and Association of Parents for Fairness in Education, Grand Falls District 50 Branch, [1986] 1 S.C.R. 549; 66 N.R. 173; 69 N.B.R.(2d) 271; 177 A.P.R. 271, consd. [para. 227].

Montreal (City) v. MacDonald, [1986] 1 S.C.R. 460; 67 N.R. 1, consd. [para. 227].

Reference Re Secession of Quebec, [1998] 2 S.C.R. 217; 228 N.R. 203, consd. [para. 232].

R. v. Beaulac (J.V.), [1999] 1 S.C.R. 768; 238 N.R. 131; 121 B.C.A.C. 227; 198 W.A.C. 227, refd to. [para. 232].

Desrochers et al. v. Industry Canada et al. (2009), 384 N.R. 50; 2009 SCC 8, refd to. [para. 232].

Brooks v. Ulmer (ex rel. Rex), [1923] 1 D.L.R. 304 (Alta. C.A.), consd. [para. 251].

Yellowknife Public Denominational District Education Authority et al. v. Euchner (2008), 446 A.R. 221; 442 W.A.C. 221; 2008 NWTCA 13, leave to appeal refused (2009)] 398 N.R. 394 (S.C.C.), consd. [para. 252].

R. v. Ewert (1989), 52 C.C.C.(3d) 280 (B.C.C.A.), refd to. [para. 267].

Lor-Wes Contracting Ltd. v. Minister of National Revenue, [1986] 1 F.C. 346; 60 N.R. 321 (F.C.A.), refd to. [para. 281].

Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re, [1998] 1 S.C.R. 27; 221 N.R. 241; 106 O.A.C. 1; 154 D.L.R.(4th) 193, refd to. [para. 281].

R. v. Sioui, [1990] 1 S.C.R. 1025; 109 N.R. 22; 30 Q.A.C. 280, refd to. [para. 281].

Statutes Noticed:

Constitution Act, 1867, sect. 133 [para. 235]; sect. 146 [para. 51].

Languages Act, R.S.A. 2000, c. L-6, sect. 3 [para. 2].

Manitoba Act, 1870, sect. 23 [para. 23].

Proclamation of December 6, 1869 (Can.), generally [para. 71].

Rupert's Land Act, 1868 (U.K.), 31 & 32 Vict., c. 105, sect. 3 [para. 59].

Rupert's Land Act Regulations (U.K.), Rupert's Land and Northwestern Territory Order, R.S.C. 1985, Appendix II, No. 9, Preamble [para. 88]; stat. cond. 15 [para. 26].

Rupert's Land and Northwestern Territory Order - see Rupert's Land Act Regulations (U.K.).

Authors and Works Noticed:

Begg, A., History of the North-West (1894), vol. 1, pp. 475, 476 [para. 85].

Canada, Governor General, Correspondence Relative to the Recent Disturbances in the Red River Settlement (1870), pp. 101 [para. 72]; 102, 103 [para. 73].

Canada, Hansard, House of Commons Debates, Sess. 1877 (April 19, 1877), p. 437 [para. 98].

Canada, Hansard, House of Commons Debates (January 22, 1890), vol. 29, pp. 38 ff. [para. 101].

Canada, Hansard, House of Commons Debates (May 13, 1891), vol. 32, pp. 174, 175 [para. 101].

Canada, Sessional Papers (April 12, 1870), vol. V, No. 12, p. 3 [para. 72].

Chitty, Joseph, A Treatise on the Law of the Prerogatives of the Crown; And the Relative Duties and Rights of the Subject (1820), p. 31 [paras. 124, 125].

Clowes, William, and Sons, Correspondence Relative to the Recent Distrubances in the Red River Settlement (1870), pp. 101 [para. 72]; 102, 103 [para. 73].

Convention at Fort Gary, The New Nation (Winnipeg) (February 11, 1870), p. 20 [para. 76].

Côté, J.E., The Reception of English Law (1977), 15 Alta. L. Rev. 29, pp. 48, 49 [para. 172]; 89, 90 [para. 130].

Halsbury's Laws of England (2003) (4th Ed. - Reissue), vol. 6, p. 478, para. 822 [para. 171].

Hansard - see Canada, Hansard, House of Commons Debates.

Hogg, Peter W., Constitutional Law of Canada (2008) (Looseleaf Ed.), p. 47.1 [para. 228].

Morton, W.L., Manitoba: A History (2nd Ed. 1957), pp. 88 to 91 [para. 66].

Newman, Warren, The Principles of Rule of Law and Parliamentary Sovereignty in Constitutional Theory and Litigation (2004-2005), 16 N.J.C.L. 175, pp. 196, 197, 222 [para. 156].

Oliver, E.H., Le Nord-Ouest canadien: son évolution primitive et ses archives législatives (1916), t. 1, generally [para. 33].

Oliver, E.H., The Canadian Northwest: Its Early Development and Legislative Records (1914), vol. 1, generally [para. 33].

Oliver, E.H., The Canadian Northwest: Its Early Development and Legislative Records (1915), vol. 2, generally [para. 48]; pp. 1317 [para. 48]; 1332 [para. 49].

Sheppard, Claude-Armand, The Law of Languages in Canada (1971), generally [para. 279].

Stubbs, Roy St. George, Four Recorders of Rupert's Land (1967), pp. 15 [para. 49]; 30 [para. 42]; 39, 40 [para. 45].

Taylor, I.B., Manitoba, Censuses of Canada, 1665 to 1871 (1876), vol. 4, pp. 380, 381 [para. 35].

Counsel:

T.R. Haykowsky, for the appellant;

R. Beaudais, for the respondent, Caron;

A. Damer, for the respondent, Boutet;

M. Doucet, M. Power and F. Larocque, for the intervenor, ACFA;

P. Bergbusch, for the intervenor, ACF.

This appeal was heard on January 19 to 23, 26 and 27, 2009, by Eidsvik, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following decision on December 16, 2009.