Language Rights of Francophones in Western Canada to Be Heard by the Supreme Court … Today

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(Disponible en français : Les droits linguistiques des francophones de l’Ouest devant la Cour suprême… aujourd’hui)

The accused and their court challenge

Today the Supreme Court will hear the case between Her Majesty the Queen, et al. (respondents) and Gilles Caron, et al. (appellants), a francophone Albertan charged with an offence under Alberta’s Traffic Safety Act. Another Albertan facing similar charges, Pierre Boutet, joined in the second proceeding.

Their traffic tickets were written in English only. During their appeal, the accused challenged the constitutionality of Alberta’s Languages Act. Under the Act, provincial statutes and regulations, including the Traffic Safety Act, are enacted, printed and published in English. The Traffic Safety Act was enacted only in English in the early 2000s. Alberta’s language regime is based on the Supreme Court’s 1988 ruling in Mercure.

Summary of Mercure

A Saskatchewan resident requested a trial in French to challenge an offence under the Vehicles Act, a unilingual Saskatchewan law of which he wanted an official French translation. This request was denied by the Court. In this case, the Supreme Court ruled that linguistic obligations that predated the province’s creation had not been constitutionalized and could be amended or repealed by an Act of the legislature. As a result, the legislative assemblies of Saskatchewan and Alberta adopted a legislative framework recognizing the validity of statutes and regulations enacted in English only.

The main issue: legislative bilingualism

The major issue that the Supreme Court must rule on in Caron is whether the province has a duty to enact, print and publish its statutes and regulations in English and in French. This will require the Court to go through a staggering amount of historical evidence.

In particular the Court will have to determine the status of the Rupert’s Land and North-Western Territory Order of 23 June 1870. Recognizing its constitutional status could call the ruling in Mercure into question.

If the Court recognizes the Order’s constitutionality, it will also have to rule on the following two issues:

  • Is Alberta’s Languages Act invalid?
  • Are the province’s unilingual statutes and regulations inoperative?

Interveners’ positions

In addition to the appellants and respondents, other parties were granted intervener status by the Supreme Court. The following table presents the position of each intervener on both issues.

Table 1 – The Interveners’ Positions on the Issues in the Court Case

Intervener Issue 1 – Is Alberta’s Languages Act invalid? Question 2 – Are Alberta’s unilingual statutes and regulations inoperative?
Her Majesty the Queen and the Attorney General of Alberta No Moot
Gilles Caron Yes Yes
Pierre Boutet Yes Yes
Attorney General of Canada No response No response
Attorney General of Saskatchewan No Moot
Alberta Catholic School Trustees’ Association, Conseil scolaire Centre-Nord No 2 and Denis Lefebvre No response No response
Association canadienne-française de l’Alberta Yes Yes
Commissioner of Official Languages of Canada Yes No response
Assemblée communautaire fransaskoise Yes Yes
Fédération des associations de juristes d’expression française de common law inc. Yes Yes

Source: Submissions of the principal parties and the interveners. (Note: A negative response to the first question renders the second one moot.)

The appellants received funding from the now-abolished Court Challenges Program, as well as from the Language Rights Support Program to enable them to assert their rights in court. In a unanimous 2011 decision, the Supreme Court granted Mr. Caron’s application for advance costs so he could pursue his court challenge.

Profile of Alberta’s francophone community

Caron is being heard at a time when Alberta’s francophone community is more vibrant than ever. The latest Census data show that the number and proportion of francophones living in the province is steadily growing.

Between 2001 and 2011, the population whose first official language spoken is French grew by roughly 12,500, an increase of over 21% in 10 years. In 2011, 71,730 Albertans declared French as their first official language spoken. In 2014, there were 34 French-language Kindergarten to Grade 12 schools in the province.

The following infographic presents the current profile of Alberta’s francophone community.

2015-03-E Infographie AlbertaFrancophones

Click here to access the explanatory tables for the profile of Alberta’s francophone community.

Looking to the past to change the future?

At stake in Caron is how constitutional law and language rights are interpreted not only in Alberta, but also in Saskatchewan, which is based on a similar regime. This case is being closely watched by francophones in both provinces. It is not unlike another ruling from the early 1980s, Re Manitoba Language Rights, where the country’s highest court confirmed Manitoba’s duty to enact, print and publish its legislation in English and in French.

So far, Mr. Caron and Mr. Boutet’s court challenge has required the courts to review new historical evidence and to consider its constitutional status. A positive answer to both questions before the Supreme Court would render inoperative the statutes and regulations enacted and published in English only. In other words, it could force Alberta and Saskatchewan to review their language legislation and translate their statutes and regulations into French, just as Manitoba had to do 30 years ago.

Related Resources

Hudon, Marie-Ève. The Role of the Courts in the Recognition of Language Rights. Publication no. 2011-68-E. Parliamentary Information and Research Service, Library of Parliament, revised 23 January 2013.

Larocque, François. “La proclamation du 6 décembre 1869.” Manitoba Law Journal. Vol. 32, No. 3, 2010. [Available in French only]

Supreme Court of Canada. “Factums.” SCC Case 35842, Gilles Caron, et al. v. Her Majesty the Queen, et al.

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Author: Marie-Ève Hudon, Library of Parliament

Categories: Justice and rights, Law, Social Affairs and Population

Tags: , , , , , ,

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