Attorney General of Manitoba v. Forest, [1979] 2 SCR 1032

Supreme Court of Canada

Attorney General of Manitoba v. Forest, [1979] 2 S.C.R. 1032

Date: 1979-12-13

The Attorney General of Manitoba (Defendant) Appellant;

and

Georges Forest (Plaintiff) Respondent;

and

The Attorney General of Canada and the Attorney General of New Brunswick Interveners.

1979: October 10; 1979: December 13.

Present: Martland, Ritchie, Pigeon, Dickson, Beetz, Estey and McIntyre JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR MANITOBA

Constitutional law—Constitution of Province—Power to amend—Language rights—The Manitoba Act, 1870 (Can.), c. 3, s. 23—An Act to Provide that the English Language shall be the Official Language of the Province of Manitoba, 1890 (Man.), c. 14, now R.S.M. 1970, c. O10—British North America Act, 1867, ss. 92(1), 133.

The Manitoba Court of Appeal granted to the respondent-plaintiff a declaration that the Manitoba Official Language Act is inoperative in so far as it abrogates rights, including the right to use the French language in the Courts of Manitoba, as conferred by s. 23 of The Manitoba Act, 1870, confirmed by the British North America Act, 1871. In the Court of Queen’s Bench the plaintiff had been denied standing but, in this Court, the reversal of the trial judge on that point was not questioned. Thus the only issue here was that set out in the following question: Are the provisions of An Act to Provide that the English language shall be the Official Language of the Province of Manitoba, 1890 (Man.), c. 14, now R.S.M. 1970, c. O10, or any of those provisions, ultra vires or inoperative in so far as they abrogate the provisions of s. 23 of The Manitoba Act, 1870, 33 Vict., c. 3 (Can.), validated by the British North America Act, 1871, 34-35 Vict., c. 28 (U.K.)?

Held: The appeal should be dismissed.

There is an obvious conflict between the provisions of the Manitoba Official Language Act and the language rights provisions of s. 23 of The Manitoba Act, 1870, and the only basis on which the Manitoba enactment was sought to be supported was the power to amend the

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Constitution of the Province, conferred upon provincial legislatures by s. 92(1) of the B.N.A. Act.

In Attorney General of Quebec v. Blaikie et al.; Attorney General of Quebec v. Laurier et al., [1979] 2 S.C.R. 1016, the conclusion is upheld by this Court that language rights under s. 133 of the B.N.A. Act do not come within the ambit of the expression “the Constitution of the Province” in s. 92(1). In view of the close similarity between s. 23 of The Manitoba Act and s. 133 in its provincial aspect, there is no need to dwell on the reasons for which the latter enactment is not to be considered as part of “the Constitution of the Province” within the meaning of s. 92(1). There is nothing in Manitoba’s situation to require a different conclusion.

Although, in a certain way, the whole Manitoba Act may be said to be the constitution of the Province, it is apparent that the amending power conferred by s. 92(1) cannot have been intended to apply to the whole of this statute any more than all the provisions of the B.N.A. Act touching upon the constitution of the provinces in this wide sense can be said to be subject to it. For instance, the provision respecting education, s. 93, embodies an absolute legal restriction on the extent of provincial legislative power followed by a right of appeal to the federal authority in some cases. This federal power is obviously beyond reach of the provincial amending power and it would be absurd to suppose that the more rigid restriction is subject thereto and may thus be removed at will. City of Winnipeg v. Barrett, [1892] A.C. 445; Brophy v. Attorney General of Manitoba, [1895] A.C. 202, referred to.

Also, if The Manitoba Act is to be taken as the constitution of Manitoba for the purpose of its Legislature’s amending power, where will one find the power to amend notwithstanding this statute? If reliance is put on the “notwithstanding” in the B.N.A. Act it must be observed that it refers to “this Act”. Therefore in order to claim some authority under that provision Manitoba must take it as it is and accept that it refers only to such provision as would fall within its scope if included in the B.N.A. Act. For the reasons already referred to, the conclusion must be that this does not include language rights. If, on the other hand, The Manitoba Act is taken by itself it must be observed that this is a federal statute which means that, unless otherwise provided, it is subject to amendment by the Parliament that enacted it and no other. It is, however, otherwise provided in s. 6 of the British North America Act, 1871. This section denies any amending power to the federal Parliament and the only amending power it allows to the Legislature of

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Manitoba is “to alter from time to time the provisions of any law respecting the qualification of electors and members of the Legislative Assembly and to make laws respecting elections in the said Province”.

It is unnecessary to consider in the present case whether this enactment implies a restriction of the amending power derived from s. 92(1) by virtue of s. 2 of The Manitoba Act. It is enough to note that on any view it certainly cannot result in Manitoba’s Legislature having towards s. 23 of The Manitoba Act an amending power which Quebec does not have towards s. 133.

APPEAL from a judgment of the Court of Appeal for Manitoba[1], allowing the respondent’s appeal from a judgment of Dewar C.J.Q.B. in an action for a declaration, inter alia, that The Officiai Language Act, R.S.M. 1970, c. O10, is ultra vires the Legislature of the Province of Manitoba. Appeal dismissed.

A.K. Twaddle, Q.C., and Miss E.R. Dawson, for the defendant, appellant.

Alain J. Hogue, M.B. Nepon and Mrs. C.W. Sharp, for the plaintiff, respondent.

J.A. Scollin, Q.C., and Laurent J. Roy, for the Attorney General of Canada.

Alan Reid, for the Attorney General of New Brunswick.

THE COURT—For the detailed and extensive reasons written by Freedman C.J., concurred in by Monnin, Hall, Matas and O’Sullivan JJ.A. ([1979] 4 W.W.R. 229) the Manitoba Court of Appeal granted to the respondent-plaintiff, Georges Forest, a declaration that The Official Language Act enacted by 1890 (Man.), c. 14, and now being R.S.M. 1970, c. O10, “is inoperative in so far as it abrogates rights, including the right to use the French language in the Courts of Manitoba, as conferred by Sec. 23 of The Manitoba Act, 1870, confirmed by the British North America

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Act, 1871”. In the Court of Queen’s Bench[2] the plaintiff had been denied standing but, in this Court, the reversal of the trial judge on that point was not questioned. Thus the only issue is that which is set out in the constitutional question determined by order of the Chief Justice:

Are the provisions of “An Act to Provide that the English Language shall be the Official Language of the Province of Manitoba” enacted by S.M. 1890, c. 14 (now R.S.M. 1970, c. O10) or any of those provisions, ultra vires or inoperative in so far as they abrogate the provisions of s. 23 of the Manitoba Act, 1870, 33 Vict., c. 3 (Can.) validated by the British North America Act, 1871, 34-35 Vict., c. 28 (U.K.)?

The Attorney General of Canada and the Attorney General of New Brunswick have intervened in support of the respondent-plaintiff.

The Official Language Act adopted in 1890 by the Legislature of Manitoba provides:

1(1) Any statute or law to the contrary notwithstanding, the English language only shall be used in the records and journals of the Legislative Assembly of Manitoba, and in any pleadings or process in or issuing from any court in the Province of Manitoba.

(2) The Acts of the Legislature of Manitoba need be printed and published only in the English language.

2 This Act applies only so far as the Legislature has jurisdiction to enact.

Section 23 of The Manitoba Act, 1870 passed by the Parliament of Canada (33 Vict., c. 3 (Can.)) reads:

23. Either the English or the French language may be used by any person in the debates of the Houses of the Legislature, and both those languages shall be used in the respective Records and Journals of those Houses; and either of those languages may be used by any person, or in any Pleading or Process, in or issuing from any Court of Canada established under the British North America Act, 1867, or in or from all or any of the Courts of the Province. The Acts of the Legislature shall

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be printed and published in both those languages.

The conflict between the two provisions is obvious and the only basis on which the Manitoba enactment was sought to be supported is the power conferred upon provincial legislatures by s. 92(1) of the B.N.A. Act, as follows:

92. In each Province the Legislature may exclusively make Laws in relation to matters coming within the Classes of Subjects next herein-after enumerated; that is to say,—

1. The Amendment from Time to Time, notwithstanding anything in this Act, of the Constitution of the Province, except as regards the Office of Lieutenant Governor.

The scope of this provision with particular reference to language rights recently came for consideration before the Courts of Quebec. In the Superior Court, Deschênes C.J. came to the conclusion, as mentioned by Freedman C.J. herein, that language rights under s. 133 of the B.N.A. Act did not come within the ambit of the expression “the Constitution of the Province” in s. 92(1). This conclusion was unanimously affirmed by the Quebec Court of Appeal and is upheld by judgment being delivered today on the appeal to this Court. In view of the close similarity noted by Freedman C.J. between s. 23 of The Manitoba Act and s. 133 in its provincial aspect, it is unnecessary to dwell upon the reasons for which the latter enactment is not to be considered as part of “the Constitution of the Province” within the meaning of s. 92(1). It will therefore be convenient to consider only whether anything in Manitoba’s situation requires a different conclusion.

The wording of s. 133 exhibits a first difference in referring to the Parliament of Canada and its Acts as well as to the provincial Legislature of Quebec and its Acts,

133. Either the English or the French Language may be used by any Person in the Debates of the Houses of Parliament of Canada and of the Houses of the Legislature of Quebec; and both those Languages shall be used in the respective Records and Journals of those Houses; and either of those Languages may be used by any Person or in any Pleading or Process in or issuing from

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any Court of Canada established under this Act, and in or from all or any of the Courts of Quebec.

The Acts of the Parliament of Canada and of the Legislature of Quebec shall be printed and published in both those languages.

In the second place, the B.N.A. Act is divided into parts, Part V being entitled “Provincial Constitutions”. Section 133 is not under that heading, but in Part IX “Miscellaneous Provisions”. Substantial importance was attached to this point in the Quebec case, but it was not relied on by the Manitoba Court of Appeal.

Then it must be observed that the Province of Manitoba was not admitted merely by Royal Order in Council under s. 146 of the B.N.A. Act but specifically under the authority of the aforementioned Manitoba Act, a statute of the Parliament of Canada. There being no provision in the B.N.A. Act expressly contemplating such action, a statute was passed by the United Kingdom Parliament, the British North America Act, 1871 (34-35 Vict., c. 28 (U.K.)) giving such power to Parliament and expressly validating The Manitoba Act, 1870. Sections 5 and 6 of the U.K. statute provide:

5. The following Acts passed by the said Parliament of Canada, and intituled respectively, -“An Act for the temporary government of Rupert’s Land and the North Western Territory when united with Canada;” and “An Act to amend and continue the Act thirty-two and thirty-three Victoria, chapter three, and to establish and provide for the government of the Province of Manitoba,” shall be and be deemed to have been valid and effectual for all purposes whatsoever from the date at which they respectively received the assent, in the Queen’s name, of the Governor General of the said Dominion of Canada.

6. Except as provided by the third section of this Act, it shall not be competent for the Parliament of Canada to alter the provisions of the last-mentioned Act of the said Parliament in so far as it relates to the Province of Manitoba, or of any other Act hereafter establishing new Provinces in the said Dominion, subject always to the right of the Legislature of the Province of Manitoba to alter from time to time the provisions of any law respecting the qualification of electors and members of

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the Legislative Assembly and to make laws respecting elections in the said Province.

(Section 3 provides for the alteration of the limits of any Province with the consent of its Legislature.)

Although, in a certain way, the whole Manitoba Act may be said to be the constitution of the Province, it is apparent that the amending power conferred by s. 92(1) cannot have been intended to apply to the whole of this statute any more than all the provisions of the B.N.A. Act touching upon the constitution of the provinces in this wide sense can be said to be subject to it. For instance, the provision respecting education, s. 93, embodies an absolute legal restriction on the extent of provincial legislative power followed by a right of appeal to the federal authority in some cases. This federal power is obviously beyond reach of the provincial amending power and it would be absurd to suppose that the more rigid restriction is subject thereto and may thus be removed at will. The point is of some importance because, as Freedman C.J. noted, s. 22 of The Manitoba Act is identical with s. 93 except for the addition of a few words intended to cover its special situation. If the provincial power to amend the Constitution of Manitoba did extend to the whole Manitoba Act it would have offered a short answer to the legal challenge of one of its schools Acts, but no such contention appears to have been raised in the two cases in the Privy Council referred to in the judgment of the Court of Appeal, namely, City of Winnipeg v. Barrett[3] and Brophy v. Attorney General of Manitoba[4]. The judgments in those cases as well as in some other cases under s. 93 show that these provisions were considered as entrenched. It is of some significance that the provision respecting language rights immediately follows the provision respecting educational rights in The Manitoba Act.

There is a last point which is to be noted. If The Manitoba Act is to be taken as the constitution of

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Manitoba for the purpose of its Legislature’s amending power, where will one find the power to amend notwithstanding this statute? If reliance is put on the “notwithstanding” in the B.N.A. Act it must be observed that it refers to “this Act”. Therefore in order to claim some authority under that provision Manitoba must take it as it is and accept that it refers only to such provision as would fall within its scope if included in the B.N.A. Act. For reasons already stated, which include those in the other case, the conclusion must be that this does not include language rights. If, on the other hand, The Manitoba Act is taken by itself it must be observed that this is a federal statute which means that, unless otherwise provided, it is subject to amendment by the Parliament that enacted it and no other. It is, however, otherwise provided in s. 6 of the British North America Act, 1871. This section denies any amending power to the federal Parliament and the only amending power it allows to the Legislature of Manitoba is “to alter from time to time the provisions of any law respecting the qualification of electors and members of the Legislative Assembly and to make laws respecting elections in the said Province”.

It is unnecessary to consider in the present case whether this enactment implies a restriction of the amending power derived from s. 92(1) by virtue of s. 2 of The Manitoba Act. It is enough to note that on any view it certainly cannot result in Manitoba’s Legislature having towards s. 23 of The Manitoba Act an amending power which Quebec does not have towards s. 133. Section 2 of The Manitoba Act reads:

2. On, from and after the said day on which the Order of the Queen in Council shall take effect as aforesaid, the provisions of the British North America Act, 1867, shall, except those parts thereof which are in terms made, or, by reasonable intendment, may be held to be specially applicable to, or only to affect one or more, but not the whole of the Provinces now composing the Dominion, and except so far as the same may be varied by this Act, be applicable to the Province of Manitoba, in the same way, and to the like extent as

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they apply to the several Provinces of Canada, and as if the Province of Manitoba had been one of the Provinces originally united by the said Act.

The appeal must be dismissed with costs to the respondent. There will be no costs to or against the interveners.

Appeal dismissed with costs.

Solicitor for the defendant, appellant: Gordon E. Pilkey, Winnipeg.

Solicitors for the plaintiff respondent: Teffaine, Monnin, Hogue & Teillet, Winnipeg.

Solicitors for the Attorney General of Canada: Monk, Goodwin & Co., Winnipeg.

Solicitor for the Attorney General of New Brunswick: Gordon F. Gregory, Fredericton.