What Did They Mean?

Must the laws of Alberta ― like those of Manitoba (as well as Québec, New Brunswick, and of course Parliament itself) be enacted and published in both French and English? The answer to this question, which the Supreme Court addressed in Caron v. Alberta, 2015 SCC 56, decided on Friday, turns on the meaning of a short phrase in a document soon to be 150 years old.

The Court’s majority, in an opinion by Justices Cromwell and Karakatsanis, found that Parliament’s promise to protect the “legal rights” of the inhabitants of the then-Rupert Land and North-Western Territory did not encompass a guarantee of legislative bilingualism. The dissenters, justices Wagner and Côté (whose opinion Justice Abella joined), begged to differ, repeatedly accusing the majority of committing an injustice. I will summarize the two opinions in this post, and venture some thoughts in a separate one.

* * *

To understand this case, a rather lengthy historical explanation is in order. In 1867, the territories that have since become Manitoba, Saskatchewan, and Alberta, as well the Yukon, the Northwest Territories, the Nunavut, and parts of Québec and Ontario, belonged to and were administered by the Hudson’s Bay Company (HBC). Section 146 of the Constitution Act, 1867, provided for the “admission” into Canada by the Imperial government, on address of the Canadian Parliament, “on such Terms and Conditions in each Case as are in the Addresses expressed and as the Queen thinks fit to approve, subject to the Provisions of this Act.” Parliament approved the first such address in 1867, and another one in 1869. The 1867 address stated that Canada would uphold “the legal rights of any corporation, company, or individual” in the North-West ― the phrase on which the issue before the Supreme Court turned.

However, the Canadian annexation plans provoked a rebellion in the Red River Settlement, the main population centre in the North-West, in what would eventually become Manitoba. The rebels formulated a number of conditions on which they would accept Canadian sovereignty. Among them were demands for legislative as well as judicial bilingualism. They also demanded the creation, out of the territories, of a single province of Assiniboia, and made financial demands. 

The Canadian authorities responded, first, by issuing a Royal Proclamation promising among other things that “all your civil and religious rights and privileges will be respected” upon entry into Canada. Under pressure from the Imperial government, they negotiated with delegates from the North-West and eventually accepted that part of the new territories would enter Canada as a new province, Manitoba. The rest would become a federally administered Territory, whose creation was provided for by an Order of the Imperial government, to which the 1867 and 1869 addresses of the Canadian Parliament were annexed. That Order is part of the Constitution of Canada described in and entrenched by section 52 of the Constitution Act, 1982.

In the first years after 1870, the new North-Western Territory was governed as though it were part of Manitoba. The laws enacted (in both French and English) by that province’s legislature applied. Then, in 1875, Parliament enacted a statute setting up a separate territorial government. A requirement of legislative bilingualism was included in that law in 1877, as a result of an amendment moved by a Senator from Manitoba. Legislation enacted in 1891 made clear that the Territory’s legislature could decide which language to use. In 1905, the province of Alberta (as well as Saskatchewan) was created out of a part of the Territory, and eventually it legislated to enact future laws in English only.

If Canada’s undertaking to protect the “legal rights” of the North-West’s inhabitants included language rights, such as legislative bilingualism, then this chain of enactments was invalid. Canada could not allow the North-Western Territory, or its successors the provinces of Alberta and Saskatchewan, to renounce legislative bilingualism, and the provinces had no authority to do so. This was the appellants’ main argument.

* * *

For the Supreme Court’s majority, the phrase “legal rights” does not encompass legislative bilingualism. While the constitution generally “should be interpreted in a large and liberal manner,” [35] and linguistic guarantees are particularly important, “[t]hese important principles … do not undermine the primacy of the written text of the Constitution.” [36] Moreover, it is not enough to

simply resort to the historical evidence of the desires and demands of those negotiating the entry of the territories, and presume that those demands were fully granted. It is obvious that they were not. The Court must generously interpret constitutional linguistic rights, not create them. [38]

Having set out these interpretive principles, the majority explains why in its view they lead to the conclusion that “legal rights” do not include legislative bilingualism. First, “[l]anguage rights were dealt with explicitly in s. 133 of the Constitution Act, 1867 and in the Manitoba Act, 1870 in very similar and very clear terms. The total absence of similar wording in the contemporaneous 1870 Order counts heavily against the appellants’ contention.” [40] Second, “political leaders in the territories themselves expressly provided for language rights when they were meant to be protected and those rights were differentiated from other, more general, rights.” [52] Third, “[t]he parliamentary debates related to the adoption of the 1867 Address show that language rights were not subsumed under the term ‘legal rights’ or ‘droits acquis‘ / ‘droits légaux‘ [which were used in various French versions of the Address].” [53] Rather, “legal rights” referred to property and economic rights. Fourth,

[t]he end result of the negotiations regarding legislative bilingualism was the enactment of the Manitoba Act, 1870. Conversely, it was never the objective of the 1870 Order to dictate that French and English must be used by the legislative body governing the newly established North-Western Territory. [58]

While the delegates from the North-West “sought to entrench bilingual rights, just as … they sought for the territories to enter Canada as a province,” [60] they only succeeded with respect to what became Manitoba ― which, however, is where most of the North-West’s people lived. Fifth, the 1867 Address cannot be taken to reflect an agreement between Canada and the people of the North-West that would not be reached until 1870.

The majority further argues that the events after 1870 confirm that the relevant actors did not understand legislative bilingualism in the North-Western Territory to be a matter of constitutional obligation. Although the amendment establishing bilingualism in the Territory’s government was not contentious, nothing shows that it was perceived as fulfilling a constitutional duty. If anything, the government at the time thought that the matter was best left to the Territory’s legislature ― as was eventually done.

Before concluding, the majority notes that if the appellants were to succeed, legislative bilingualism would be “constitutionally entrenched not only for Alberta, but also for all of the former HBC lands, which now form part of Saskatchewan, Ontario, Quebec, Yukon, Nunavut and present-day Northwest Territories.” [102] Moreover, “[t]he logical extension of this reasoning would also lead inevitably to the conclusion that a variety of other demands made by the settlers have been constitutionalized by the words ‘legal rights,'” [102] including the to entrench the then-prevailing practice of appointing bilingual judges.

* * *

The dissent took a different approach to the issue before the Court. In its view, “[t]he answer to the question whether Alberta is constitutionally required to enact … all its laws in French as well as in English is written across the history of Rupert’s Land and the North-Western Territory” ― and not merely in the phrase “legal rights” in the 1867 Address. Ascertaining the meaning of that step is only the last step of its analysis.

Much of the dissenting opinion consists of an extensive review of the historical evidence. Its authors insist that “the content of the promises conveyed in the 1867 Address cannot be interpreted without reference to the context in which they were made.” [139] This review serves to stress, time and again, the importance of legislative bilingualism to the people of the North-West.

This population, the dissent notes, was composed of both French- and English-speakers; their legislature and their courts used both languages, as did the administrators appointed by the HBC; departures from these practices were met with discontent and resistance. Bilingualism extended throughout the North-West ― it was not limited to what became the province of Manitoba, and as the delegates who negotiated the annexation with the Canadian government represented the people of all the North-West, not only of the Red River Settlement, it would have been been inconceivable for them to limit their demands for legislative bilingualism to that province. Indeed, the Canadian government did not oppose these demands, nor was it in a position to do so, being pressed to conclude an agreement by the Imperial authorities.

For the dissent, the events after 1870 support the existence of a constitutional promise of legislative bilingualism to the people of the North-West. Little changed there in the aftermath of the annexation to Canada, since the bilingual administration of Manitoba exercised power. And once the territorial government was established, it was bilingual in practice, even before bilingualism was required by federal law.

This historical review takes up more than 100 paragraphs in the dissenting opinion. The “Application of the Principles of Constitutional Interpretation to the 1867 Address,” which follows it, fewer than 30. The principles in question “are that the Constitution must be interpreted contextually, that its provisions must be given a broad and purposive reading, and that its nature — as an expression of the will of the people governed by it — is relevant.” [216]

Applying these principles, the dissent concludes that the “historic” “compromise between the Canadian government and the territories’ inhabitants” [222] included a promise of legislative bilingualism. Referring to the French version of the 1867 Address, which spoke of the “droits acquis” ― the vested rights ― of the people of the North-West, the dissent states that “legislative bilingualism was one of these vested rights.” [226] It was also implicitly referred to by the Royal Proclamation, with its promise to uphold “civil and religious rights” ― which thus “recognized the cultural needs of the Métis” [229] of the North-West. That the protection of linguistic rights was not explicit as in other constitutional provisions is not determinative. To hold otherwise would be unjust and incompatible “with the broad and generous approach to constitutional interpretation that this Court has repeatedly taken,” [231] and with the “large and expansive meaning” which the authors of the 1867 Address “attributed … to the[] rights” it contained. [234] Finally, the dissent asserts that, like Confederation itself,

[t]he annexation of the territories … resulted from negotiations between a dominant English-speaking party and a party with a strong interest in protecting the French language. Like the French-speaking minority in the negotiations that resulted in Confederation, the inhabitants sought to have the protection of their linguistic rights entrenched in the Constitution, and this was granted to them. [239]

To give effect to “the will of the people” who enacted it, the interpretation of the Constitution must take their demands into account.

* * *

So much for the opinions. I will try to have some thoughts on them shortly.

2 thoughts on “What Did They Mean?

  1. Pingback: How to do Originalism | Double Aspect

  2. Pingback: Le droit et les droits - Policy Options

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