Legislative

Your right is enshrined in the Canadian Charter of Rights and Freedoms (Charter), the Constitution Act of 1867 and the Manitoba Act of 1870.

What is a legislative right?

A legislative right is one that pertains to activities related to lawmaking, such as debates in Parliament and legislative assemblies, minutes of proceedings, newspapers, the texts of laws and the drafting of laws.

Constitutional language rights in the legislative field are written in:

• Section 133 of the Constitution Act of 1867
• Section 23 of the Manitoba Act of 1870
• Sections 2, 17 and 18 of the Charter.

What is the Canadian Constitution?

The Canadian Constitution is the supreme law of Canada. All laws passed by the federal government, the provinces and the territories must respect the obligations and powers that the Constitution confers on them. Unlike many countries that have a single constitutional document, such as the United States, Canada has a constitution made up of a number of written and unwritten elements.

The unwritten elements are principles confirmed by decisions of the Supreme Court of Canada. For example, the unwritten principle of the protection of minorities, set out in the Reference re Secession of Quebec, is a legal process that answered questions of rights arising out of the possible secession of Québec.

What effect do unwritten principles have?

Unwritten principles influence the interpretation of legal documents that may affect language rights. This means that the effect of a legal document on minorities must be taken into account in determining its meaning and scope.

Unwritten principles are constitutional principles expressed by the Supreme Court of Canada and implied in written constitutional documents.

Written and unwritten elements are said to be constitutional. Chief among the written elements are the following documents:

• the Constitution Act, 1867 
• the Manitoba Act, 1870 
• the Canadian Charter of Rights and Freedoms
• treaties. 

Note: For a treaty to be considered a constitutional document, it must be recognized and confirmed. See section 35 of the Charter on this subject. For example, the Supreme Court of Canada has the power to recognize and confirm a treaty.

The Constitution Act, 1867, formerly known as the British North America Act, is one of the written elements of the Constitution. Constitutional documents set out the powers, rights, and obligations of individuals and governments. Some sections of these documents set out constitutional language rights that the federal government and the provincial and territorial governments must respect in their respective fields of jurisdiction. This means that not all governments have the same obligations.

The constitutional obligations of governments with respect to official languages essentially deal with rights in four areas:

• legislation; 
• justice; 
• communications and services; and
• education.

What constitutional documents guarantee rights in the judicial area?

In 1867, Canada was created by the British North America Act, now known as the Constitution Act, 1867. Section 133 of this act guarantees rights in the legislative and judicial areas to Canadian citizens and inhabitants of Québec.

In 1870, the Manitoba Act gave legal status to the province of that name and guaranteed legislative and judicial language rights to its inhabitants.

Then, in 1982, the adoption of the Canadian Charter of Rights and Freedoms guaranteed a number of language rights to the Canadian public, to Canadian citizens as well as to official language communities as stated in Sections 16 to 23 of the Charter. Furthermore, the Charter guarantees constitutional language rights to New Brunswick inhabitants and official language communities in these four areas: legislative, judicial, education and communications and services

Language and the sharing of powers

Language is not listed in the sharing of powers set out in the Canadian Constitution. It is “accessory” to the powers of the Parliament and the legislatures set out in sections 91 to 101 of the Constitution Act, 1867. This means that each government can pass laws in its fields of jurisdiction that include provisions on the use of languages, as long as that the obligations set out in the Canadian Constitution are complied with.

The Northwest Territories, Yukon and Nunavut have legislative power that was given to them by the federal government when they were created. The enabling act of each territory states their powers. As a general rule, their powers are similar to those of the provinces, but are not enshrined in the Canadian Constitution.

The language obligations of the territories are set out in the law that created them and are similar to those of the federal government.

• Northwest Territories: The Northwest Territories initially made up a major part of the Canadian territory. The area of the Northwest Territories was reduced with the creation of the provinces, particularly of Alberta and Saskatchewan in 1905, under the North-west Territories Amendment Act, Statutes of Canada 1905 (v. I-II), c. 27, p. 161-163.
• Yukon: Canada enacted the Yukon Territory Act in 1898, which designated Yukon as an independent territory with Dawson as its capital. The purpose of the act was to create an administrative body for the entire Yukon territory. Its full title is An Act to provide for the Government of the Yukon District (short title: The Yukon Territory Act), Statutes of Canada 1898 (v. I-II), c. 6, p. 55 -61.
• Nunavut: The Nunavut Land Claims Agreement Act, which ratified the agreement, and the Nunavut Act, which created the new territory, were both passed on June 10, 1993.

For more information on this subject, see the table of legislative rights.

In some cases, powers may be shared: the federal government has the power to adopt a law in a particular field, but the law is administered by the province.

For example, the federal government has exclusive power to amend the Criminal Code and criminal procedures. However, because of their exclusive power to administer justice, the provinces enforce the Criminal Code and criminal procedures during trials. The federal government is then said to have delegated its obligations to the provinces.

Note: Unlike obligations in the areas of education and of communications and services, there is no criterion for the definition of a right holder in the legislative and judicial areas. This means that rights in these areas are applicable to everybody without any restrictions or conditions.

The Canadian Constitution includes legislative and judicial rights. These rights are found in:

• section 133 of the Constitution Act, 1867;
• sections 2, 17, 18 and 19 of the Charter;
• section 23 of the Manitoba Act, 1870.

The rights set out in these sections are part of Canadian constitutional language rights.

Obligations and authority regarding constitutional language rights are shared between the federal government and provincial governments in accordance with their fields of jurisdiction: this is known as the “sharing of powers.”

For example, the federal government has the authority or jurisdiction to act in matters arising out of federal laws such as:

• the Criminal Code;
• the Official Languages Act;
• the Contraventions Act.

These federal laws impose obligations regarding constitutional language rights on Parliament (legislative rights) and federal courts (judicial rights).

Provincial governments have authority or jurisdiction to act, for example, in matters relating to:

• provincial courts
• provincial legislatures.

The provinces, then, also have obligations regarding constitutional language rights in connection with provincial courts (judicial rights) and provincial legislatures (legislative rights).

RED ARROW: When a province administers a federal law, obligations regarding constitutional language rights do not disappear; the province is therefore required to comply with the obligations contained in the federal law.

Alberta

The right to use both official languages in Parliament and the legislatures

Case funded by the LRSP for an intervention

This case involved Gilles Caron and the Government of Alberta over a traffic ticket that was issued to Mr. Caron, a Francophone, in English only.

Funding was granted to the Association canadienne-française de l’Alberta (ACFA) to intervene in the case before the Court of Queen's Bench and the Court of Appeal of Alberta.

The dispute relating to language rights between Mr. Caron and the Albertan government concerned:

• Paragraphs 16(1) and 16(3) of the Canadian Charter of Rights and Freedoms.

The lawyers in this case argued that Mr. Caron’s constitutional language rights had not been respected when he received a traffic ticket written only in English and that their client had a right to a trial in French in Alberta.

The ACFA intervened in this case on the grounds that cost orders were well founded in a case involving minority official language communities in Alberta and elsewhere in Canada, which had never been done before. Its argument was based on the principles of interpretation arising out of constitutional language rights, in particular section 16 of the Charter. 

Decision in regards to the intervention:

Mr. Caron was involved in a trial against the Government of Alberta and obtained an order for the Crown to pay his defense fees. This was the first time that such an order was granted before the end of a trial on a matter of constitutional language rights.“Mr. Caron — having run out of money — established to the satisfaction of the provincial court that he was unable to finance the rebuttal evidence necessary to complete the trial unless he were provided with interim costs”, stated the Honorable Justice Binnie in his decision.

Other questions addressed to the court:

Another aspect that was debated during this case was whether or not the laws guaranteeing the use of English and French that were enacted for the territory known as Rupert’s Land in the mid-19th century, which encompassed parts of Western Quebec all the way to Alberta and up to the Northwest Territories, are still valid today.

If the court were to find that these laws are still valid today, then Alberta’s laws would have to be written and published in both official languages. It would also mean that citizens would have the right to a trial in the official language of their choice, which would include speaking that language and being understood by the judge.

History of language rights in Alberta

What is the history of the French-speaking population of Alberta?

Alberta originally formed part of a huge territory ceded to the Hudson’s Bay Company in 1670. Over the course of the succeeding two centuries, Aboriginal peoples, fur traders and missionaries settled there.

According to censuses mentioned on the Statistics Canada website, the Assiniboia region had a population of 2,390 in 1831 and 3,649 in 1835.

What is Rupert’s Land?

*The following information is taken from L’aménagement linguistique dans le monde (website in French only).

In 1867, Rupert’s Land was still part of the territories administered by the Hudson’s Bay Company. It included part of western Quebec, the greater part of northwest Ontario, all of Manitoba, almost all of Saskatchewan and Alberta, and the eastern part of the Northwest Territories. Rupert’s Land stretched from Alaska to Labrador and covered an estimated surface area of 7.2 million square kilometres – 79 % of the current area of Canada.

French and English were the official languages of the government of the time, known as the Council of Assiniboia (Red River Colony). They were also used in the General Court, the court of justice of the period. Laws were drafted in both official languages. In 1838, proficiency in French was a requirement for all positions related to judicial activity. In 1852 and 1863 the Council of Assiniboia enacted laws in English and in French.

When the government of the time was party to a suit brought before the court, the government’s representative was instructed to address the court in both official languages, that is, in French and in English, when Canadian or Métis interests were involved in the suit. In a trial where both parties were Francophone, the proceedings were normally conducted in French, and members of the jury were all Francophone. 

When the parties were Anglophone and Francophone, the trial was bilingual. Bilingual trials were conducted in both languages, with the services of interpreters, and half of the members of the jury were Francophone, the other half Anglophone. It could be said that Rupert’s Land was a “bilingual country” to the greater satisfaction of all its inhabitants.

According to Archives Canada, at the end of the 18th Century, two rival companies were operating in the area: the Hudson’s Bay Company and the North West Company. The former belonged to British interests and the latter to Canadian interests in Montreal. In 1821, the Hudson’s Bay Company and the North West Company merged, keeping the name Hudson’s Bay Company.

On November 19, 1869, the Government of Canada acquired the Northwest Territories and all the territories belonging to the Hudson’s Bay Company, commonly known as Rupert’s Land.

In 1870, the region between the province of Manitoba and the Canadian Rocky Mountains was organized as a territory and was thenceforth known as the Northwest Territories. The arrival of the railway in the mid-1880s opened up this territory to massive settlement. Alberta became a province on September 1, 1905.

The Alberta School Act, enacted in 1905, designated English as the sole language of instruction.

In language matters, the Alberta government was unwilling to enforce the provisions of the Northwest Territories Actproviding for the optional use of French and English in the Legislative Assembly, in the texts of laws, and in court. This Act also made the use of English and French mandatory in the writing of court decisions, laws, minutes and the archives of the Legislative Assembly of the Northwest Territories.

In 1969, the Alberta government amended the Alberta School Act to allow the use of French in bilingual schools from Grade 1 through to Grade 12.

How did the Francophone population mobilize?

In the early 1980s, Franco-Albertans began to demand rights in the judicial, education and legislative domains. For more information on these demands, visit L’aménagement linguistiquedans le monde (site in French only).

With the adoption of the Canadian Charter of Rights and Freedoms in 1982, and more particularly section 23 of the Charter, Francophones finally obtained a guarantee of their right to education in the minority language. Provincial education law must respect the rights set out in section 23 of the Charter.

Have there been new developments regarding the rights of Franco-Albertans?

Yes, the recent Caron case made the headlines in Canada.

In the Caron case, Mr. Caron asked the Court of Appeal of Alberta to recognize the validity of the Royal Proclamation that would oblige the Alberta government to pass its laws and regulations in both official languages.

Language rights in Alberta

• Summary of language rights in Alberta
• 3 definitions of right-holders in Alberta

Case study

The following case study is meant to help you apply the principles discussed in this section and in the Legislative section of our website.

• Case Study – Reference Re Manitoba Language Rights
• Case Study Answers
• Summary of Reference Re Manitoba Language Rights

Useful links 

• Cause Caron
• Reference re Manitoba Language Rights