Alberta not obliged to translate laws into French, Supreme Court rules

Posted on November 20, 2015 in Governance Policy Context – News/National
Nov. 20, 2015.   Sean Fine Justice Writer

Alberta has no constitutional obligation to translate its laws into French, the Supreme Court of Canada ruled on Friday. The ruling was 6-3, with two of the court’s three Quebec judges in the dissent.

The ruling came in a case in which two Alberta men, Gilles Caron and Pierre Boutet, said the provincial traffic laws they violated in 2005 were unconstitutional because they were not published in French.

“Clearly, a province may choose to enact its laws and regulations in both French and English,” the majority said, in a ruling co-authored by Justice Thomas Cromwell of Nova Scotia and Justice Andromache Karakatsanis of Ontario. “But one cannot simply infer a guarantee of legislative bilingualism that would override this exclusive provincial jurisdiction absent clear textual and contextual evidence to support an entrenched right.”

The minority offered a very different view of the evidence.

“Alberta is constitutionally required to enact, print and publish its laws and regulations in both French and English,” wrote Justice Richard Wagner and Justice Suzanne Côté, joined by Justice Rosalie Abella of Ontario. “This is because the historic agreement between the Canadian government and the inhabitants of Rupert’s Land and the North Western Territory contained a promise to protect legislative bilingualism.”

At issue was the history behind Canada’s annexation of the West in 1870. A separate law created Manitoba that year and expressly provided for bilingual laws. No such provision appeared in the British policy setting out the new rules outside of Manitoba, in areas then known as Rupert’s Land and the North-Western Territory. But Mr. Boutet and Mr. Caron argued that, before 1870, official bilingualism had been the rule when the lands were under Hudson’s Bay Company control; at the time, roughly half of the inhabitants were French-speaking.

“The argument is that in 1870 there was a fundamental compromise,” Sébastien Grammond, a University of Ottawa law professor who represented one of the two Alberta men, said in an interview. And that compromise was given constitutional status by the 1870 British Order-in-Council that brought the West into Canada.

Alberta argues, however, that the courts should not substitute their own view of an ideal history over what actually happened. It says the British policy would have made direct mention of bilingualism if that is what it intended.

“It is the role of historians, not the courts, to ponder what might have been if different policy choices had been made,” the Alberta government argued in a court filing. “Courts should not involve themselves in furnishing legal opinions about historical events for the sole purpose of influencing political and policy outcomes, let alone elevating a revisionist version of historical events to constitutional status. The 1870 Order cannot be interpreted as entrenching language rights in the Territories.”

Apart from Manitoba, Quebec, Ontario and New Brunswick publish their laws in both languages, according to Prof. Grammond, while Saskatchewan and Nova Scotia publish some statutes in French.

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