R. v. Caron (G.) et al., 2014 ABCA 71

• Judge: O'Brien, Slatter and Rowbotham, JJ.A.
• Court: Court of Appeal (Alberta)
• Case Date: February 21, 2014
• Citations: 2014 ABCA 71;(2014), 569 A.R. 212

R. v. Caron (G.) (2014), 569 A.R. 212; 606 W.A.C. 212 (CA)

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: [2014] A.R. TBEd. FE.103

Her Majesty the Queen/Sa Majesté la Reine (respondent/intimée) v. Gilles Caron and Pierre Boutet (appellants/appelants) et/and Association Canadienne-Française de l'Alberta et/and L'Assemblée Communautaire Fransaskoise Inc. (interveners/intervenantes)

(1003-0016-A; 1003-0017-A; 2014 ABCA 71)

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

Alberta Court of Appeal

O'Brien, Slatter and Rowbotham, JJ.A.

February 21, 2014.

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 Road Regulations. This legislation was enacted, printed and published in English only by virtue of s. 3 of the Languages Act (Alta.). 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 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, in a decision reported 476 A.R. 198, 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. The court invited the parties back to deal with sanction. The accused applied for leave to appeal. The Association canadienne-française de l'Alberta requested intervener status on both the application and the appeal proper.

The Alberta Court of Appeal, per Watson, J.A., in a decision reported 493 A.R. 200; 502 W.A.C. 200, allowed the application in part. The court certified the two following questions for consideration by a full panel: (a) must the laws of Alberta be printed and published in French and English; and (b) was the Languages Act, R.S.A. 2000, c. L-6, ultra vires or without effect in as much as it repealed a constitutional obligation by Alberta to print and publish its laws and regulations in French and in English? The court ruled that there was no need to recognize the Association canadienne-française de l'Alberta as intervener on the application where the court actually heard it anyway. As for the appeal proper, the court referred the intervention question to another judge or a panel of the court. Finally, the court suspended the "obligation" of the accused to attend the sanction hearing. The accused applied for a grant of litigation funding ("advance costs") by the Crown in Right of Alberta. His counsel suggested a cap of $80,000. L'Association Canadienne-Française de l'Alberta and l'Assemblée Communautaire Fransaskoise moved to be allowed to intervene in the appeal.

The Alberta Court of Appeal, per Côté, J.A., in a decision reported at 515 A.R. 304; 532 W.A.C. 304, ordered that the accused be given a loan of $11,600, at 3% interest compounded annually, repayable by instalments of $200 per month. The court allowed the motions for intervener status.

The Alberta Court of Appeal dismissed the appeals. The answer to both questions was "no".

Constitutional Law - Topic 5

General principles - Canadian constitution - What constitutes - Proclamations - The accused were charged with offences under the Traffic Safety Act - The trial judge acquitted the accused, finding that the provisions under which they were charged were inoperative because they were not printed and published in French as well as English - The summary conviction appeal judge allowed a Crown appeal - She held that the Royal Proclamation issued by the Governor General of Canada in 1869 did not have the effect of constitutionalizing language rights in what was now Alberta because it was not a constitutional document and had no legal force - She found that the Royal Proclamation was never passed into law by British Parliament - She concluded that the British Crown was not exercising its constituent power in issuing the Royal Proclamation - Rather, the Royal Proclamation was a political document which served to diffuse the conflict in face of the annexation - Further, she found that although the inhabitants of Rupert's Land and the North-Western Territory had a statutory right to have local ordinances published in French and English prior to annexation, these were not entrenched upon annexation - The accused appealed - The Alberta Court of Appeal dismissed the appeals - The court agreed with the summary conviction appeal judge's conclusions - See paragraphs 33 to 35.

Constitutional Law - Topic 7703

Language rights - General principles - Source of language rights - [See Constitutional Law - Topic 5 ].

Constitutional Law - Topic 7703

Language rights - General principles - Source of language rights - The accused were charged with offences under the Traffic Safety Act - The trial judge acquitted the accused, finding that the provisions under which they were charged were inoperative because they were not printed and published in French as well as English - The summary conviction appeal judge allowed a Crown appeal - She held that the Order issued by the Imperial Parliament in 1870 did not have the effect of constitutionalizing language rights in what was now Alberta - She concluded, inter alia, that language rights were expressly protected in s. 23 of the Manitoba Act and s. 133 of the Constitution Act, 1867 - If the intent had been to accord constitutional protection to language rights in Rupert's Land and the North-West Territories, wording similar to those sections could have been used in the 1870 Order - She found that although the inhabitants of Rupert's Land and the North-Western Territory had a statutory right to have local ordinances published in French and English prior to annexation, these were not entrenched upon annexation - The accused appealed - The Alberta Court of Appeal dismissed the appeals - The fact that nowhere in the 1870 Order was there any indication of an intention to expressly protect the right to publication in French and English in the territory strongly militated against the interpretation that language rights were entrenched therein - The absence of explicit language of entrenchment of language rights in the 1870 Order was an insurmountable barrier to the accused's argument - See paragraphs 36 to 53.

Equity - Topic 3611

Fiduciary or confidential relationships - General principles - Crown - The accused were charged with offences under the Traffic Safety Act - The trial judge acquitted the accused, finding that the provisions under which they were charged were inoperative because they were not printed and published in French as well as English - The summary conviction appeal judge allowed a Crown appeal - She held that neither the Royal Proclamation issued by the Governor General of Canada in 1869 nor the Order issued by the Imperial Parliament in 1870 had the effect of constitutionalizing language rights in what was now Alberta - The accused appealed - An intervener asserted that Alberta was bound by a fiduciary relationship with the province's French-speaking population - Under this fiduciary relationship, Alberta had a duty to uphold the right to legislative bilingualism enjoyed by the Métis and French-speaking peoples prior to annexation - The Alberta Court of Appeal dismissed the appeals - To determine the existence of a fiduciary duty, there had to be: "(1) an undertaking by the alleged fiduciary to act in the best interests of the alleged beneficiary; (2) a defined person or class of persons vulnerable to a fiduciary's control; and (3) a legal or substantial practical interest of the beneficiary that stands to be adversely affected" - The intervener's argument failed at least the last part of the test - The adverse effect had to be with respect to a "specific private law interest to which a person has a pre-existing distinct and complete legal entitlement" - The Supreme Court of Canada had given examples of private law interests: "property rights, interests akin to property rights, and the type of fundamental human or personal interest that is implicated when the state assumes guardianship of a child or incompetent person" - Language rights were not akin to these private law interests and thus not subject to a fiduciary obligation - Moreover, the issue here was a narrow one - It was the right to the publication of legislation in French - In the context of a claim as a fiduciary, it was a demand for a benefit which the government, in the exercise of its discretion to allocate resources, had chosen not to do - There could be no fiduciary obligation on a government to create a law which gave that particular benefit to the accused - See paragraphs 54 to 57.

Cases Noticed:

Mercure v. Saskatchewan, [1988] 1 S.C.R. 234; 83 N.R. 81; 65 Sask.R. 1; 48 D.L.R.(4th) 1, consd. [paras. 14, 67].

R. v. Mercure - see Mecure v. Saskatchewan.

R. v. Paquette, [1990] 2 S.C.R. 1103; 137 N.R. 232; 125 A.R. 388; 14 W.A.C. 388; 76 Alta. L.R.(2d) 194, refd to. [paras. 14, 67].

Yellowknife Public Denominational District Education Authority et al. v. Euchner (2008), 446 A.R. 221; 442 W.A.C. 221; 2008 NWTCA 13, refd to. [paras. 36, 100].

Reference Re Secession of Quebec, [1998] 2 S.C.R. 217; 228 N.R. 203; 161 D.L.R.(4th) 385, refd to. [para. 46].

Lalonde et al. v. Commission de restructuration des services de santé (Ont.) (2002), 153 O.A.C. 1; 56 O.R.(3d) 577; 208 D.L.R.(4th) 577; 2001 CanLII 21164 (C.A.), refd to. [paras. 46, 98].

Reference Re Roman Catholic Separate High Schools Funding, [1987] 1 S.C.R. 1148; 77 N.R. 241; 22 O.A.C. 321; 40 D.L.R.(4th) 18, refd to. [paras. 46, 98].

Reference Re Bill 30, An Act to Amend the Education Act (Ont.) - see Reference Re Roman Catholic Separate High Schools Funding.

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; 173 D.L.R.(4th) 193, refd to. [paras. 47, 99].

Reference Re Public Schools Act (Man.), [1993] 1 S.C.R. 839; 149 N.R. 241; 83 Man.R.(2d) 241; 36 W.A.C. 241, refd to. [paras. 47, 99].

Protestant School Board of Greater Montreal et al. v. Québec (Procureur général) et al., [1989] 1 S.C.R. 377; 92 N.R. 327; 20 Q.A.C. 241; 57 D.L.R.(4th) 521, refd to. [paras. 49, 100].

Reference Re Compulsory Arbitration, [1987] 1 S.C.R. 313; 74 N.R. 99; 78 A.R. 1; 28 D.L.R.(4th) 161, refd to. [paras. 49, 100].

Greater Montreal (Protestant School Board) v. Quebec (Attorney General) - see Reference Re Compulsory Arbitration.

Manitoba Metis Federation Inc. v. Canada (Attorney General), [2013] 1 S.C.R. 623; 441 N.R. 209; 291 Man.R.(2d) 1; 570 W.A.C. 1; 2013 SCC 14, refd to. [paras. 51, 131].

Elder Advocates of Alberta Society et al. v. Alberta et al., [2011] 2 S.C.R. 261; 416 N.R. 198; 499 A.R. 345; 514 W.A.C. 345; 2011 SCC 24, refd to. [para. 55].

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. 64].

Houle v. BMW Financial Services et al. (2012), 539 A.R. 27; 561 W.A.C. 27; 2012 ABCA 333, refd to. [para. 66].

United States of America v. Perot (1878), 98 U.S. 428, refd to. [para. 66].

Fremont v. United States of America (1854), 58 U.S. 542, refd to. [para. 66].

Title of Pa Pelekane, Re (1912), 21 Haw. 175 (Hawai'i Terr.), refd to. [para. 66].

South African Breweries Ltd. v. H.E. Muriel (1905), 26 Natal. L.R. 362, refd to. [para. 66].

Minister of National Revenue v. Craig, [2012] 2 S.C.R. 489; 433 N.R. 111; 2012 SCC 43, refd to. [para. 68].

R. v. J.L.M.A. (2010), 499 A.R. 1; 514 W.A.C. 1; 40 Alta. L.R.(5th) 199; 2010 ABCA 363, refd to. [para. 68].

Carter et al. v. Canada (Attorney General) et al. (2013), 345 B.C.A.C. 232; 589 W.A.C. 232; 2013 BCCA 435, refd to. [para. 68].

Cassell & Co. v. Broome, [1972] A.C. 1027, refd to. [para. 68].

R. v. Henry (D.B.) et al., [2005] 3 S.C.R. 609; 342 N.R. 259; 376 A.R. 1; 360 W.A.C. 1; 219 B.C.A.C. 1; 361 W.A.C. 1; 2005 SCC 76, refd to. [para. 69].

Bedford et al. v. Canada (Attorney General) (2013), 452 N.R. 1; 312 O.A.C. 53; 2013 SCC 72, consd. [para. 69].

Rodriguez de Quijas v. Shearson/American Express Inc. (1989), 490 U.S. 477, refd to. [para. 70].

Manitoba Language Rights Reference, [1985] 1 S.C.R. 721; 59 N.R. 321; 35 Man.R.(2d) 83, refd to. [para. 84].

R. v. Rottiers (R.) (1995), 134 Sask.R. 152; 101 W.A.C. 152 (C.A.), refd to. [para. 89].

Reference Re Adoption Act, [1938] S.C.R. 398, refd to. [para. 98].

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. 100].

Friends of the Canadian Wheat Board et al. v. Canada (Attorney General) et al. (2012), 433 N.R. 329; 352 D.L.R.(4th) 163; 2012 FCA 183, leave to appeal refused (2013), 446 N.R. 393; 2013 SCC 34973, refd to. [para. 103].

Quebec Constitutional Amendment Reference (No. 2); Attorney General of Quebec v. Attorney General of Canada et l'Association Canadienne-Française de l'Ontario and Grand Council of the Crees (of Quebec), [1982] 2 S.C.R. 793; 45 N.R. 317, refd to. [para. 104].

Authorson v. Canada (Attorney General), [2003] 2 S.C.R. 40; 306 N.R. 335; 175 O.A.C. 363; 2003 SCC 39, refd to. [para. 106].

Conseil scolaire francophone de la Colombie-Britannique et al. v. British Columbia et al. (2013), 447 N.R. 204; 341 B.C.A.C. 1; 582 W.A.C. 1; 2013 SCC 42, refd to. [para. 107].

Manuel v. Attorney General, [1983] 1 Ch. 77 (C.A.), refd to. [para. 116].

Constitutional Amendment References 1981 (Man., Nfld., Que.), [1981] 1 S.C.R. 753; 39 N.R. 1; 11 Man.R.(2d) 1; 34 Nfld. & P.E.I.R. 1; 95 A.P.R. 1, refd to. [para. 119].

R. v. Lefthand (2007), 77 Alta. L.R.(4th) 203; 2007 ABCA 206, refd to. [para. 121].

Ex parte Chavasse (1865), 4 De. G.J. & S. 655; 46 E.R. 1072 (Ct. Ch.), refd to. [para. 134].

Campbell v. Hall (1774), Lofft 655; 98 E.R. 1045 (K.B.), refd to. [para. 142].

Ross River Dena Council Band et al. v. Canada et al., [2002] 2 S.C.R. 816; 289 N.R. 233; 168 B.C.A.C. 1; 275 W.A.C. 1; 2002 SCC 54, refd to. [para. 143].

R. (Bancoult) v. Secretary of State for Foreign and Commonwealth Affairs (No. 2), [2009] 1 A.C. 453; [2008] UKHL 61, refd to. [para. 143].

Burmah Oil v. Lord Advocate, [1965] A.C. 75, refd to. [para. 143].

Reference Re Alberta Act, [1927] S.C.R. 364, refd to. [para. 164].

Authors and Works Noticed:

Begg, Alexander, Red River Journal, generally [para. 131].

Canada Gazette (1870), vol. 4, No. 5, generally [para. 121].

Canada, Hansard, House of Commons Debates (1905), pp. 8530, 8533, 8534 [para. 83].

Canada, Hansard, House of Commons Journals (1867-1868), pp. 67, 68 [para. 121].

Canada, Session Papers, No. 12 (1870), pp. 43, 44 [para. 9].

Caminker, Evan H., Why Must Inferior Courts Obey Superior Court Precedents (1993-1994), 46 Standord L. Rev. 817, pp. 860, 861 [para. 70].

Dicey, A.V., Introduction to the Study of the Law of the Constitution (10th Ed. 1960), pp. 202, 203 [para. 121].

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

Hogg, Peter W., Constitutional Law of Canada (Looseleaf), para. 1.9 [para. 144].

Sheppard, Claude-Armand, The Law of Languages in Canada (1971), p. 85 [para. 163].

Counsel:

T. Haykowsky, P.P. Taschuk, Q.C., and D.D. Risling, for the respondent;

R.J.F. Lepage, for the appellant, Gilles Caron;

A.W. Damer, S. Grammond, M.C. Power and F. Larocque, for the appellant, Pierre Boutet;

M. Doucet, Q.C., F. Larocque and M.C. Power, for the intervener Association Canadienne-Française de L'Alberta;

F.P. Poulin and R.J.F. Lepage, for the intervener L'Assemblée Communautaire Fransasoise Inc.

This appeal was heard on April 22 and 23, 2013, by O'Brien, Slatter and Rowbotham, JJ.A., of the Alberta Court of Appeal. The judgment of the Court of Appeal was delivered on February 21, 2014, and included the following opinions:

Rowbowtham, J.A. (O'Brien, J.A., concurring) - see paragraphs 1 to 59;

Slatter, J.A., concurring in the result - see paragraphs 60 to 171.