MacDonald v. City of Montreal, [1986] 1 S.C.R. 460
Duncan Cross MacDonald Appellant;
and
City of Montreal Respondent;
and
The Attorney General of Canada, the Attorney General of Quebec, the Société franco‑manitobaine and Alliance Quebec, Alliance for Language Communities in Quebec Interveners.
File No.: 17528.
1984: December 18, 19: 1986: May 1.
Present: Dickson C.J. and Beetz, Estey, McIntyre, Lamer, Wilson and Le Dain JJ.
on appeal from the court of appeal for quebec
Appeal ‑‑ Jurisdiction of Supreme Court of Canada ‑‑ Leave to appeal refused by Court of Appeal ‑‑ Whether leave to appeal to Supreme Court of Canada may be granted by the Supreme Court ‑‑ Supreme Court Act, R.S.C. 1970, c. S‑19, s. 41(1).
Constitutional law ‑‑ Language rights ‑‑ Court proceedings ‑‑ English‑speaking person in Quebec given summons for traffic violation in French only ‑‑ Whether summonses emanating from Quebec courts constitutionally valid if issued in one or other of the official languages ‑‑ Constitution Act, 1867, s. 133.
Appearing before the Municipal Court of the City of Montréal to answer a charge of violating a municipal by‑law, appellant, an English‑speaking person, unsuccessfully challenged the jurisdiction of the court to proceed against him on the ground that the unilingual French summons issued by the court violated his fundamental rights as an English speaker under s. 133 of the Constitution Act, 1867. In a trial de novo in the Superior Court, appellant was again convicted. The court concluded that documents such as summonses emanating from the province's courts must be considered constitutionally valid so long as they are issued in one or other of the French or English languages. The Court of Appeal refused to grant leave to appeal from the judgment of the Superior Court. This appeal raises two issues: (1) whether the Supreme Court has jurisdiction to hear a case for which leave to appeal to a provincial court of appeal was denied by the provincial court of appeal and (2) if so, whether the summons, being expressed in the French language only, and not in the language of the English‑speaking accused, offends the provisions of s. 133 of the Constitution Act, 1867, resulting in a total absence of jurisdiction of the court to proceed against him.
Held (Wilson J. dissenting): The appeal should be dismissed.
(1) The Jurisdictional Issue
Per Beetz, Estey, McIntyre, Lamer and Le Dain JJ.: This Court has jurisdiction to hear this case. It is a jurisdiction which, for obvious reasons of policy and comity, should be exercised most sparingly, in very rare cases such as this one, where there is a risk that a question of major constitutional importance might otherwise be put beyond the possibility of review by this Court.
Per Dickson C.J. and Wilson J.: This Court has jurisdiction pursuant to s. 41(1) of the Supreme Court Act to review the Quebec Court of Appeal's decision not to grant leave to appeal from a judgment at trial. While the Court should in general maintain an attitude of deference to the exercise of judicial discretion by intermediate appellate courts, it should not hesitate, in light of the broad language of s. 41(1) and the role of the Court as the ultimate appellate tribunal, to interfere with discretionary decisions on those rare occasions when it perceives legal principles of national, and more particularly, constitutional significance to be at stake. To the extent that the Ernewein and Nicholson cases are inconsistent with this view, they should not be followed.
Cases Cited
By Beetz J.
Paul v. The Queen, [1960] S.C.R. 452; Walsh v. City of Montreal (1980), 55 C.C.C. (2d) 299 (Que. S.C.), application for leave to appeal refused, Mtl. C.A., November 10, 1980; Ernewein v. Minister of Employment and Immigration, [1980] 1 S.C.R. 639; Nicholson v. Haldimand‑Norfolk Regional Board of Commissioners of Police, [1981] 1 S.C.R. 92, referred to.
By Wilson J.
Ernewein v. Minister of Employment and Immigration, [1980] 1 S.C.R. 639; Nicholson v. Haldimand‑Norfolk Regional Board of Commissioners of Police, [1981] 1 S.C.R. 92, not followed; R. v. Gardiner, [1982] 2 S.C.R. 368; R. v. Joseph (1900), 6 C.C.C. 144; Walsh v. City of Montreal (1980), 55 C.C.C. (2d) 299 (Que. S.C.), application for leave to appeal refused, Mtl. C.A., November 10, 1980, referred to.
(2) The Constitutional Issue
Per Beetz, Estey, McIntyre, Lamer and Le Dain JJ.: The summons in French given to the English‑speaking appellant did not offend the provisions of s. 133 of the Constitution Act, 1867. On the plain meaning of s. 133, as construed by this Court in the two Blaikie cases, appellant has no right to be summoned before a court of Quebec by a process issued in his own language. The section provides that a process issued from a Quebec court may be in either of the official languages. If there is a right to use either language, there can be no obligation nor a duty to use the other. In judicial proceedings in the courts covered by s. 133, the language rights protected are those of litigants, counsel, witnesses, judges and other judicial officers who actually speak, not those of parties or others who are spoken to; and they are those of the writers or issuers of written pleadings and processes, not those of the recipients or readers thereof. In the case at bar, there is therefore no doubt that the summons was valid. The Municipal Court of Montreal is a court of Quebec within the meaning of s. 133 and the summons‑‑clearly a document covered by the first Blaikie decision‑‑, considered as a command or as a charge, was a process issuing from such a court or under its authority. It may then be unilingual in either the French or the English language.
It may well be desirable or fair that summonses be bilingual to ensure comprehension by the recipient, but such a requirement is not imposed by the explicit provision of s. 133. The section has not introduced a comprehensive scheme of official bilingualism but a limited form of compulsory bilingualism at the legislative level, combined with an even more limited form of optional unilingualism in Parliamentary debates and in judicial proceedings. This incomplete but precise scheme is a constitutional minimum which resulted from an historical compromise arrived at by the founding people who agreed upon the terms of the federal union. The scheme is couched in a language which is capable of containing necessary implications, which can be complemented by federal and provincial legislation, and it is a scheme which can be modified by way of constitutional amendment. But it is not open to the courts under the guise of interpretation, to improve upon, supplement or amend this historical constitutional compromise.
The requirements of natural justice and procedural fairness should not be invoked to construe s. 133. These requirements protect not language rights but other rights which the section was never intended to safeguard and with which it is entirely unrelated. It is axiomatic that everyone has a common law right to a fair hearing, including the right to be informed of the case one has to meet and the right to make full answer and defence. Where the defendant cannot understand the proceedings because he is unable to understand the language in which they are being conducted, the effective exercise of these rights may well impose a consequential duty upon the court to provide adequate translation. But the right of the defendant to understand what is going on in court is not a language right but simply an aspect of the right to a fair hearing.
Per Dickson C.J.: The unilingual summons received by the appellant did not offend s. 133 of the Constitution Act, 1867. The words of the section, as construed by this Court in the first Blaikie decision, empower the courts of Quebec to issue unilingual documents. Any implied affirmative obligation which may be cast upon the "State" to give effect to a litigant's right to use either French or English is necessarily subordinated to the express authority of courts to issue process in one language only. It is therefore unnecessary in the present case to consider the precise extent of the litigant's right to use either language in the judicial setting.
Per Wilson J., dissenting: The Municipal Court of the City of Montréal had no jurisdiction to proceed against the appellant on the basis of a summons which violated his linguistic rights under s. 133 of the Constitution Act, 1867. The right conferred on a litigant by that section to use his own language in judicial proceedings imposes a correlative duty on the state to respect and accommodate that right. The words may/either in s. 133 in relation to the language of court proceedings were not employed in order to confer an option on the state to choose the official language in which it wishes to deal with a litigant but to confer an option on the citizen.
The legislative history of the pre‑1867 Acts from which s. 133 devolved demonstrates clearly that the focus of concern was meaningful access to the judicial system by users of both official languages. Section 133 reflects a similar concern. It recognizes the linguistic duality in the Province of Quebec and assures both French and English‑speaking citizens that their linguistic rights will be protected by the state in a meaningful fashion. The purpose of the section is to put the two official languages on an equal footing. It follows from this that the state's obligation is not satisfied if its courts and their documents speak in either French or English without regard to the language of the litigant. To fulfil its obligation, the state must deal with a litigant in the language he understands. Therefore, to comply with s. 133, the initiating documents emanating from the court must, at a minimum, contain a directive to the recipient in the official language he understands alerting him to the importance of the document and advising him where to apply for a translation.
Cases Cited
By Beetz J.
Walsh v. City of Montreal (1980), 55 C.C.C. (2d) 299; Attorney General of Quebec v. Blaikie, [1979] 2 S.C.R. 1016; Attorney General of Quebec v. Blaikie, [1981] 1 S.C.R. 312, applied; Bilodeau v. Attorney General of Manitoba, [1981] 5 W.W.R. 393; Shaw v. City of Montreal (1982), 70 C.C.C. (2d) 19; Forest v. Registrar of Court of Appeal of Manitoba, [1977] 5 W.W.R. 347; Jones v. Attorney General of New Brunswick, [1975] 2 S.C.R. 182; Attorney General of Ontario v. Reale, [1975] 2 S.C.R. 624; Unterreiner v. The Queen (1980), 51 C.C.C. (2d) 373; Sadjade v. The Queen, [1983] 2 S.C.R. 361, referred to.
By Dickson C.J.
Attorney General of Quebec v. Blaikie, [1979] 2 S.C.R. 1016, applied.
By Wilson J. (dissenting)
Attorney General of Quebec v. Blaikie, [1981] 1 S.C.R. 312; Attorney General of Quebec v. Blaikie, [1979] 2 S.C.R. 1016; Nicholson v. Haldimand‑Norfolk Regional Board of Commissioners of Police, [1979] 1 S.C.R. 311; Hunter v. Southam Inc., [1984] 2 S.C.R. 145; Jones v. Attorney General of New Brunswick, [1975] 2 S.C.R. 182; Reference re Manitoba Language Rights, [1985] 1 S.C.R. 721; Holme v. Guy (1877), 5 Ch. D. 901; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; Veuillette v. The King (1919), 58 S.C.R. 414; R. v. Talon, Que. K.B., February 4, 1812, reported and discussed at (1945), 5 R. du B. 201; Minister of Home Affairs v. Fisher, [1979] 3 All E.R. 21; Walsh v. City of Montreal (1980), 55 C.C.C. (2d) 299; Bilodeau v. Attorney General of Manitoba, [1981] 5 W.W.R. 393; Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803); Attorney‑General for Ontario v. Attorney‑General for Canada, [1912] A.C. 571; Ridge v. Baldwin, [1964] A.C. 40; Forsythe v. The Queen, [1980] 2 S.C.R. 268; Re Potma and The Queen (1983), 2 C.C.C. (3d) 383; Mercure v. Attorney‑General of Saskatchewan, [1986] 2 W.W.R. 1.
Statutes and Regulations Cited
Act for the Division of the Province of Lower Canada, for Amending the Judicature thereof, and for Repealing Certain Laws Therein Mentioned, 1793 (L.C.), 34 Geo. 3, c. 6, s. 29.
Act for the establishment of a better Court of Appeals in Lower Canada, 1843 (Can.), 7 Vict., c. 18, ss. I, X.
Act respecting Jurors and Juries, 1864 (Can.), 27 & 28 Vict., c. 41, s. 7(2).
Act respecting Municipalities and Roads in Lower Canada, C.S.L.C. 1861, c. 24, ss. 5(17), 7(2), 27(14).
Act respecting the Constitution Act, 1982, 1982 (Que.), c. 21.
Act respecting the Court of Queen’s Bench, C.S.L.C. 1861, c. 77, s. 28.
Act respecting the ordinary Procedure in the Superior and Circuit Courts, C.S.L.C. 1861, c. 83, ss. 1, 2.
Act to amend the Act intituled, An Act to regulate the summoning of Jurors in Lower Canada, 1851 (Can.), 14 & 15 Vict., c. 89, ss. I, III, IV.
Act to amend the Law relative to the Administration of Justice in Lower Canada, 1846 (Can.), 9 Vict., c. 29, s. I.
Act to amend the Laws relative to the Courts of Original Civil Jurisdiction in Lower‑Canada, 1849 (Can.), 12 Vict., c. 38, ss. XIX, XCIV.
Act to establish a Superior Court of Civil and Criminal Jurisdiction, and to regulate the Court of Appeal, 1794 (U.C.), 34 Geo. 3, c. 2, s. IX [rep. 1822 (U.C.), 2 Geo. 4, c. 1].
Act to provide for the translation into the French Language of the Laws of this Province, and for other purposes connected therewith, 1841 (Can.), 4 & 5 Vict., c. 11, ss. I, II, III.
Act to repeal certain Acts and Ordinances therein mentioned, and to make better provision for the Administration of Justice in Lower Canada, 1843 (Can.), 7 Vict., c. 16, ss. XVIII, LIV.
Canadian Bill of Rights, R.S.C. 1970, App. III, s. 2(e), (g).
Canadian Charter of Rights and Freedoms, ss. 2, 7, 11(a), 14, 33.
Charter of the city of Montreal, 1960, 1959‑60 (Que.), c. 102, ss. 1126 [repl. 1966‑67 (Que.), c. 86, s. 61; repl. 1971 (Que.), c. 96, s. 72; repl. 1977 (Que.), c. 77, s. 167], 1140 [repl. 1966‑67 (Que.), c. 86, s. 53; repl. 1971 (Que.), c. 96, s. 75; am. 1972 (Que.), c. 76, s. 20; repl. 1977 (Que.), c. 77, s. 170].
Constitution Act, 1867, ss. 91(27), 92(14), 133.
Constitution Act, 1871, R.S.C. 1970, App. II, No. 11.
Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 31(3) [rep. & subs. 1974‑75‑76 (Can.), c. 18, s. 9(2)].
Manitoba Act, 1870, R.S.C. 1970, App. II, No. 8, s. 23.
Municipal Code of the Province of Quebec, 1870 (Que.), c. 68, s. 224.
Official Languages Act, R.S.C. 1970, c. O‑2.
Ordinance to regulate the proceedings, in certain cases, in the Court of King’s Bench, and to give the subject the benefit of Appeal from Large Fines (1787), 27 Geo. 3, c. 1.
Ordinance to regulate the proceedings in the courts of civil judicature, and to establish Trials by Juries in actions of a commercial nature and personal wrongs to be compensated in damages (1785), 25 Geo. 3, c. 2 [rep. 1801 (L.C.), 41 Geo. 3, c. 7].
Supreme Court Act, R.S.C. 1970, c. S‑19, ss. 38, 39 [rep. & subs. R.S.C. 1970 (1st Supp.), c. 44, s. 2], 41 [rep. & subs. 1974‑75‑76 (Can.), c. 18, s. 5], 44.
Summary Convictions Act, R.S.Q. 1977, c. P‑15, s. 108.
Union Act, 1840, 1840 (U.K.), 3 & 4 Vict., c. 35 [reproduced R.S.C. 1970, App. II, No. 4].
Authors Cited
Austin on Jurisprudence, vol. 1, 5th ed. by R. Campbell, London, 1885.
Beaudoin, G.‑A. "Le décor historique et constitutionnel" (1983), 14 R.G.D. 227.
Bowker, W. F. "Basic Rights and Freedoms: What are they?" (1959), 37 Can. Bar Rev. 43.
Canada. Royal Commission on Bilingualism and Biculturalism, Studies No. 10, The Law of Languages in Canada, 1971.
Coode, G. On Legislative Expression, 2nd ed., 1852.
Driedger, E. A. Construction of Statutes, 2nd ed., Toronto, Butterworths, 1983.
Hart, H. L. A. "Definition and Theory in Jurisprudence" (1954), 70 L.Q.R. 37.
Hegel, G. W. Philosophy of Right, trans. by T.M. Knox, Oxford, Clarendon Press, 1942.
Hohfeld, W. N. Fundamental Legal Conceptions, ed. by W. W. Cook, New Haven, Yale University Press, 1923.
Jowitt's Dictionary of English Law, vol. 2, 2nd ed. by John Burke, London, Sweet & Maxwell Ltd., 1977, "process".
Lederman, W. R. "The Nature and Problems of a Bill of Rights" (1959), 37 Can. Bar Rev. 4.
Marx, H. "Language Rights in the Canadian Constitution" (1967), 2 R.J.T. 239.
Nantel, M. "La langue française au Palais" (1945), 5 R. du B. 201.
Ontario. Royal Commission Inquiry into Civil Rights, Queen's Printer, 1968.
Salmond on Jurisprudence, 11th ed. by G. Williams, London, Sweet & Maxwell Ltd., 1957.
Stone J. The Province and Function of Law, Sydney, Associated General Publications Pty. Ltd., 1946.
Tremblay, A. "The Language Rights (Ss. 16 to 23)" in W. Tarnopolsky and G.‑A. Beaudoin eds., The Canadian Charter of Rights and Freedoms: Commentary, Toronto, Carswells, 1982.
Weiler, P. "Rights and Judges in a Democracy: A New Canadian Version" (1984), 18 U. Mich. J.L. Ref. 51.
APPEAL from a refusal of the Quebec Court of Appeal to grant leave to appeal from a judgment of the Superior Court, [1982] C.S. 998. Appeal dismissed, Wilson J. dissenting.
Walter J. Roustan and Henry S. Brown, for the appellant.
Neuville Lacroix, for the respondent.
Joseph Eliot Magnet, for the intervener the Société franco‑manitobaine.
Stephen A. Scott, for the intervener Alliance Quebec, Alliance for Language Communities in Quebec.
James M. Mabbutt, for the intervener the Attorney General of Canada.
Réal‑A. Forest and Lucie Angers, for the intervener the Attorney General of Quebec.
The following are the reasons delivered by
1. The Chief Justice‑‑I agree with Wilson J. as to the jurisdiction of this Court to entertain an appeal from the refusal of leave to appeal by an intermediate appellate court.
2. I concur in the conclusion of my colleague, Beetz J., that the unilingual summons received by the appellant does not offend s. 133 of the Constitution Act, 1867.
3. The relevant portion of s. 133 reads as follows:
... 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 this Act, and in or from all or any of the Courts of Quebec.
(Emphasis added.)
4. These words empower the courts to issue unilingual documents: Attorney General of Quebec v. Blaikie, [1979] 2 S.C.R. 1016, at p. 1030. Any implied affirmative obligation which may be cast upon the "state" to give effect to a litigant's right to use either French or English is necessarily subordinated to the express authority of courts to issue process in one language only. It is therefore unnecessary in the present case to consider the precise extent of the litigant's right to use either language in the judicial setting; and I refrain from doing so.
5. I would accordingly dismiss the appeal with costs.
The judgment of Beetz, Estey, McIntyre, Lamer and Le Dain JJ. was delivered by
Beetz J.‑‑
I‑‑Introduction
6. The constitutional question stated in this case by Ritchie J. reads as follows:
Does a summons which is printed and published in the French language only and commands an English speaking person to appear before the Courts of Quebec offend the provisions of s. 133 of the Constitution Act, 1867, resulting in a total absence of jurisdiction of the Court to proceed against him?
7. The wording of this question will be commented upon later.
8. Section 133 of the Constitution Act, 1867, provides:
133. Either the English or the French Language may be used by any Person in the Debates of the Houses of the 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 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.
II‑‑The Facts and the Proceedings
9. The facts are straightforward and apparently undisputed, although the manner in which the case reached this Court is unusual.
10. By summons dated February 25, 1981, issued from the Municipal Court of the City of Montréal, the appellant was summoned to appear before that court on a given date to answer a charge of speeding contrary to a by‑law of the City.
11. On one side, the document bears the title "Assignation" and, inter alia, the style of cause, "Ville de Montréal vs Macdonald, Cross Duncan" as well as the date set for appearance.
12. The other side is as follows in its most important parts:
canada cour municipale de la ville de montréal
province de québec
attendu qu’à Montréal, à la date précitée, étant le responsable du véhicule ci-dessus décrit, vous avez
enfreint
le règlement 1319 (41-a), en conduisant à une vitesse excédant 50 km/h, à savoir, 0084 km/h.
près de bl ste anne st jacques de 13:00 à 00:84
à ces causes, nous vous ordonnons, au nom de Sa Majesté, de comparaître devant la Cour municipale de la Ville de Montréal, 775, rue Gosford, à la date fixée pour votre comparution, soit à 10 heures, soit à 15 heures, pour répondre à cette inculpationet être ultérieurement traité suivant la loi.
Donné à Montréal, ce jour, sous ma signature.
Greffier
sommation
13. This side bears the signature of the Clerk of the Municipal Court.
14. The parts which are not underlined are printed, leaving blanks which, in the underlined parts have been filled by typing or similar mechanical means associated perhaps with a word processor.
15. It can be noted that this summons in all its parts is exclusively in the French language.
16. According to his factum, the appellant secured an English translation, entered a plea of not guilty and ultimately proceeded at trial without the benefit of counsel before Judge Maurice Bourassa of the Municipal Court of the City of Montréal.
17. According to Judge Bourassa, the charge was clearly established by a police constable and the appellant, who testified, confessed to having exceeded the speed limit. The appellant's sole defence, which he argued in English, orally as well as in writing, was an argument in law challenging the jurisdiction of the court to proceed against him in that the complaint or summons was not made in English and violated his fundamental rights as an English speaking person under s. 133 of the Constitution Act, 1867.
18. In a written judgment dated March 24, 1982, Judge Bourassa dismissed appellant's challenge to his jurisdiction and convicted him as charged, imposing a fine of $30 plus costs or three days in jail.
19. The appellant retained counsel and appealed to the Superior Court by way of trial de novo. The appeal was heard on September 30, 1982 by Meyer J. who, upon completion of argument, delivered an oral judgment whereby he dismissed the appellant's appeal and affirmed his conviction: MacDonald c. Ville de Montréal, [1982] C.S. 998.
20. The appellant sought leave to appeal to the Quebec Court of Appeal pursuant to s. 108 of the Summary Convictions Act, R.S.Q. 1977, c. P‑15:
108. An appeal lies to the Court of Appeal, with leave of that court or of a judge of that court, from any judgment of the Superior Court rendered under the authority of this act, if the party making the application shows a sufficient interest to warrant decision on a question of law only.
21. In a written endorsement dated December 3, 1982, McCarthy J.A. dismissed appellant's application for leave to appeal, without recorded reasons.
22. Thereupon, the appellant sought leave to appeal to this Court from the decision of McCarthy J.A.
23. The appellant's application was first heard on March 21, 1983, by a panel of three members of this Court. At the time, the specific constitutional issue raised in the case at bar had never been considered by this Court on the merits. However, on November 16, 1981, another panel of three members of this Court had granted applicant Roger Joseph Albert Bilodeau leave to appeal from a judgment of the Manitoba Court of Appeal, Bilodeau v. Attorney General of Manitoba, [1981] 5 W.W.R. 393. The Bilodeau case, in which judgment is being delivered to‑day, had reached the Court of Appeal by way of stated case. One of the questions for determination in that case was whether s. 23 of the Manitoba Act, 1870, which corresponds with and is almost identical to s. 133 of the Constitution Act, 1867, was manda‑ tory or directory and whether or not two Manitoba statutes enacted in the English language only were valid; the other question was similar to the one raised in the case at bar: it related to the validity of a speeding charge summons issued in the English language only to a French‑speaking accused. In the Bilodeau case, leave to appeal to this Court had been granted at large, [1981] 2 S.C.R. vi.
24. In the course of the hearing of the application for leave to appeal in the case at bar, members of the panel who heard the application pointed to the problem raised by Ernewein v. Minister of Employment and Immigration, [1980] 1 S.C.R. 639, and Nicholson v. Haldimand‑Norfolk Regional Board of Commissioners of Police, [1981] 1 S.C.R. 92. The problem was seemingly a jurisdictional one as it appeared in Ernewein where the appeal had not been merely dismissed but quashed after leave to appeal from a decision of the Federal Court of Appeal refusing leave to appeal to itself had been granted by three members of this Court. The three members of the panel who first heard the application for leave to appeal in the case at bar were asked to disregard this jurisdictional problem. They referred the application to the Court. It was heard on April 27, 1983 and, on May 17, 1983, a seven member Court presided by Laskin C.J.C. granted leave to appeal from the decision of McCarthy J.A., [1983] 1 S.C.R. x.
25. It can safely be assumed that the reasons why leave was granted in the case at bar were that it had been granted in Bilodeau on a similar issue and also that the Court wanted an opportunity to reconsider Ernewein and Nicholson.
26. Of the four interveners, the Attorney General of Canada and the Attorney General of Quebec supported the respondent, whereas the Société franco‑manitobaine and Alliance Québec, Alliance for Language Communities of Quebec supported the appellant.
III‑‑The Judgments of the Courts Below
27. After stating the facts and the sole question of law arising in the case, Judge Bourassa of the Municipal Court of the City of Montréal, wrote that the same question had been resolved against the accused by Judge Tourangeau of the same court in the unreported case of Ville de Montréal v. Walsh, No. 085 042 635. Judge Bourassa quoted certain passages of the reasons of Judge Tourangeau and noted that the latter's judgment had been affirmed in appeal by Hugessen A.C.J. as he then was. Judge Bourassa then followed the judgment of Hugessen A.C.J., after quoting the latter's reasons in extenso, as if they were his own for all practical purposes.
28. The reasons of Hugessen A.C.J. have been reported: Walsh v. City of Montreal (1980), 55 C.C.C. (2d) 299. But they are relatively short and, for convenience, I quote them here in part:
On August 27, 1979, Merrick Walsh went through a stop sign within the limits of the City of Montreal. He was in breach of a municipal by‑law. He was observed by a police officer who stopped him and gave him a traffic ticket. The ticket was in the French language. He did not, as he might have done, pay the amount indicated on the face of the ticket. In due course, on December 14, 1979, a summons was issued out of the Municipal Court. It was returnable February 26, 1980. The summons was also in the French language except for the part describing the offence, which was written in both French and English.
Before the Municipal Court, Mr. Walsh, through counsel, made a motion to quash the summons on the grounds that it was in French only. By judgment dated May 16, 1980, the municipal Judge dismissed the motion. On June 20, 1980, the trial took place in Municipal Court and Mr. Walsh was convicted. He now appeals to this Court and renews his contention that the summons is illegal and should be quashed. He admits, however, the facts relating to the original breach of the by‑law, so that these are no longer in issue. Thus, if the argument relating to the validity of the summons is not accepted, the appeal must be dismissed and the conviction affirmed.
The argument, as I understand it, turns on s. 133 of The British North America Act, 1867.
29. Hugessen A.C.J. quoted s. 133 and continued:
It is clear that the Municipal Court of Montreal is a Court of Quebec within the meaning of the section. It is equally clear that the summons addressed to Mr. Walsh is a process issuing from such Court. Mr. Walsh claims that being English‑speaking he has the right to receive process in English or, at the very least, in both English and French.
The argument is untenable. Section 133 does not want for clarity. In certain cases (the records and journals of Parliament and the Legislature, and the statutes passed by those bodies), the use of both English and French is obligatory. The word used is "shall". In other cases (debates in Parliament and the Legislature, and proceedings in federal and Québec Courts), there is a choice of either one or the other of the two languages. The word used is "may".
If there is a right to use either language, there can be no obligation to use the other. Still less can there be an obligation to use both.
It was suggested in argument that the right to use either language in pleading or process must apply as much to the person receiving, the reader or listener, as to the person transmitting, the writer, speaker or issuer. Such an interpretation is not possible for it makes a nonsense of the words used. Obviously if the recipient of a pleading or process has the right to choose which of the two languages it shall be in, the issuer loses his right to make use of either language. The hardship that would be worked on pleaders in civil cases is obvious, for every pleading would have to be made in both languages in order to satisfy the rights of the other party...
In the case of parliamentary debates, where the essential words of the text are identical ("either ... may be used by any Person"), it is clear that the rights preserved are those of the speaker only. The situation cannot be different for Court proceedings.
I would add that the present case is not concerned with Mr. Walsh's right to have his trial in English. If and when that right is denied, it will be dealt with in another case. Our only concern, here, is with the language of the initiating summons. That language may be either English or French.
The conclusion I have reached is imposed not only by the clear text of Section 133 but also by the most recent pronouncement of the Supreme Court of Canada on the subject. In A.‑G. Qué. v. Blaikie et al., (1979), 49 C.C.C. (2d) 359, 101 D.L.R. (3d) 394, [1979] 2 S.C.R. 1016 it was said, speaking of Quebec courts (at p. 369 C.C.C., p. 1030 S.C.R.): "... documents emanating from such bodies or issued in their name or under their authority may be in either language, and this option extends to the issuing and publication of judgments or other orders".
There is nothing more that I need say.
30. Mr. Walsh sought leave to appeal to the Quebec Court of Appeal. His application was dismissed by Montgomery, Paré and McCarthy JJ.A. in an unreported written endorsement dated November 10, 1980 which reads:
[TRANSLATION] Application dismissed with costs fixed at $50.00, the whole for the reasons given by Hugessen C.J.
(Signed) G.H. Montgomery J.C.A.
31. Thus, the Quebec Court of Appeal unanimously adopted the reasons of Hugessen A.C.J. on the merits, although they did so on an application for leave to appeal.
32. I also find convenient to quote most of the reasons of Meyer J. in the case at bar. At pages 999 and 1000 he wrote:
The appellant does not contest the facts, which are admitted. His appeal is based on one ground only, namely, that the summons which was issued to the appellant to appear and plead and answer to the charge in this case, was drafted unilingually in the French language, and that he, as an English‑speaking person, is entitled to have a summons drafted in his language, under the provisions of the Canadian Constitution, and in particular in virtue of Section 133 of the British North America Act, 1867 (now called the Constitution Act, 1867).
...
This is not the first time that this matter has come before the courts. In P.G. du Québec c. Blaikie, (1979) 2 S.C.R. 1016, the Supreme Court of Canada stated clearly that Section 133 provided to all persons an option to use either the French or the English language before the courts of Quebec or its other tribunals, and that documents emanating from such courts or tribunals or issued in their name or under their authority may be in either language, this option extending to the issuing and publication of judgments or other orders. The wording of the Supreme Court's decision distinguishes clearly between the option given to persons to use either language orally or in their written documents and pleadings, and, on the other hand, documents emanating from courts or tribunals themselves or issued in their name or under their authority, which may also be in either the French or the English language. This decision flowed directly from the wording of Section 133 which states clearly that "... 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 this Act, and in or from all or any of the Courts of Quebec ...".
These words in Section 133 clearly mean, inter alia, that either the French or the English language may be used (1) by any person appearing or pleading or participating in any way whatsoever in or before any court of Quebec, and (2) in any pleading or process in or issuing from any court of the Province of Quebec.
The undersigned is therefore of the view that whether a "person" does or does not (as suggested by appellant) include the Crown, the prosecution, the state, or the court itself, is irrelevant. This is because the Act clearly provides, as an entirely separate rule, that in any pleading or process in or issuing from any court of Quebec, either the French or the English language may be used (whether by a "person" or not), while additionally it is provided that either the French or the English language may be used by any person in any Quebec court.
...
The Blaikie case referred to is also clearly permissive insofar as the court itself is concerned, and allows the court or tribunal to use either language, at its choice, in documents emanating from it, or in documents issued in its name or under its authority, which documents may be in either language.
...
It may well be desirable or fair that traffic tickets or summonses should be bilingual, to ensure comprehension by the recipient insofar as this is possible, but in my view it is not required by our law. A judge, for example, may issue a unilingual judgment in the English or the French language, even if all of the parties appearing before him are unable to understand the judgment which he has rendered, and the same reasoning would apply to a unilingual traffic ticket or summons. Summonses and complaints are clearly among the documents covered by the first Blaikie decision. The summons in the present case either emanates from the Municipal Court of Montreal or was issued in the name of the Municipal Court or under its authority, and it may thus be unilingual in either the French or the English language.
33. Meyer J. then noted that Hugessen A.C.J. had reached the same conclusion on the same question in the Walsh case, as well as Boilard J. in Shaw v. City of Montreal (1982), 70 C.C.C. (2d) 19, and he dismissed the appeal.
34. Shaw also had to do with a Montréal Municipal Court traffic summons drafted in the French language only and addressed to an English‑speaking accused. Boilard J. quoted s. 133 of the Constitution Act, 1867 and some of the reasons of Hugessen A.C.J. in Walsh and, in his oral reasons reported at p. 22, he said:
Process issued from a court in the Province of Quebec may be in either one of the official languages no matter what language is spoken by the person to whom it is intended.
35. He then reached his conclusions dismissing the appeal.
IV‑‑Summary of the Appellant's Submission on the Merits
36. The appellant's main submission can be formulated as follows:
Section 133 of the Constitution Act, 1867 which reads in part
"and either of those Languages may be used by any Person or..."
vests fundamental language rights in the Person to the exclusion of the State and imposes a correlative duty on the State to respect a Person's choice of language in a summons.
37. In addition, the appellant made what I would call a preliminary submission relating to the nature of the summons, and he supported his main submission with what I would term ancillary submissions relating inter alia to a) historical analysis with respect to s. 133; b) the nature of language as a means of communication and c) procedural fairness and natural justice.
38. The appellant's counsel would not necessarily characterize his submissions in this manner, nor did he present them in the order indicated above. I simply find this way of stating them to be more in harmony with my understanding of his position.
V‑‑The Nature of the Summons
39. Before I consider the preliminary submission made by the appellant, I find it necessary to clarify some of the confusion which seems to have arisen in the case at bar with respect to the true nature of the instrument labelled a "summons" and described above in detail.
40. This confusion is perhaps understandable, given the simplified procedure that the Charter of the city of Montreal, 1960, 1959‑60 (Que.), c. 102, as amended, provides for the prosecution of certain offences, by contrast with the more traditional procedure prescribed for instance by the Summary Convictions Act, supra, and similar legislation. Under such traditional legislation, while a summons usually states the complaint or charge or a summary thereof, there is a distinction between the two, conceptually as well as physically. A complaint or charge is a statement accusing a person of an offence and upon which the accused person will be tried, whereas a summons in a criminal or penal case is a command ordering the accused to appear in court on a given date to answer a given charge or complaint. Furthermore, a charge and a summons are usually found in two separate and distinct instruments.
41. Not so, or not necessarily so, in the City of Montréal under the City Charter, as in many other jurisdictions nowadays. Thus, in its fourth and fifth paragraphs, s. 1140 of the City Charter, as it read at the relevant time, provided as follows:
With respect to the issue of a writ of summons for a violation of any act or by‑law relating to traffic, public safety or the use of a motor vehicle or of any accessory to such a vehicle, the filing of a complaint is not required and the writ may be issued on information supplied in the manner determined by the chief attorney and approved by the executive committee.
If the offender who has received a notice of summons or a summons does not avail himself of the provisions governing full payment, proceedings shall be continued and he shall appear in court on the date mentioned. If he does not appear, the judge or the clerk under the authority of the chief judge may condemn him for the violation described in the summons or in the notice of summons...
The section dispenses altogether with the filing of a complaint before the issuance of a summons. There is then, as in the case at bar, no complaint or charge other than the one described in the summons, a copy or the original of which is kept in court, and which thus becomes a composite instrument: although labelled a summons, it is at once a summons strictly so‑called and a charge since it is the only document where the recital of the charge can be found and a charge is essential of course to the jurisdiction of the court.
42. That this is so is further demonstrated by the text of s. 1140 of the City Charter, which provides that where the offender does not appear, he may be condemned "for the violation described in the summons or in the notice of summons" and, in the French version, "pour l'infraction décrite au billet d'assignation ou à la sommation". This is also reflected in the summons issued in the case at bar which states the charge and commands the appellant to appear in the Municipal Court "pour répondre à cette inculpation", that is "to answer this charge".
43. This summons bears the signature of the Clerk of the Municipal Court, pursuant to s. 1126 of the City Charter:
1126. The summonses, orders to appear, warrants for imprisonment and writs of execution issued in the name of Her Majesty, her heirs or her successors shall bear the signature of the judge or of the clerk.
44. The Clerk was thus the issuer of this composite instrument under both its aspects, that is as a command and as a charge.
45. I did not understand counsel for the appellant to agree with the proposition that the charge forms part of the summons. On the contrary, his preliminary submission emphasizes the command aspect of the summons, as does the constitutional question that he submitted to Ritchie J. and which was stated by the latter without amendment.
46. This preliminary submission is that the summons, being a command of the Sovereign by Her appointed officer calling the accused before Her justice, is ministerial in nature and not a process issuing or emanating from the court. This submission is advanced in response to the propositions expressed by Hugessen A.C.J. and Meyer J. in the above quotations to the effect that clearly "the summons addressed to Mr. Walsh is a process issuing from" a court within the meaning of s. 133 and "the summons in the present case either emanates from the Municipal Court of Montreal or was issued in the name of the Municipal Court or under its authority".
47. I do not agree with this preliminary submission even if one is to consider the instrument in question only as a summons strictly so‑called, that is solely as a command ordering the accused to appear in court.
48. The command is in the name of the Sovereign according to custom because the Sovereign is the fountain of justice. The purpose of the summons is to enforce the jurisdiction of the court, by compelling the appearance of the accused before it. Should the recipient disregard the command, he would run the risk that judgment by default be rendered against him‑‑another process of the court‑‑or that a warrant for his arrest be issued‑‑still another process of the court. The summons bears on its face the name of the court from which it emanates and the signature of its principal officer apart from its judges who also have the power to issue it.
49. If the summons in this case, even considered strictly as a command, is not a process issuing from a court of Quebec, within the meaning of s. 133 of the Constitution Act, 1867, I do not know what is.
50. There is however more to the point.
51. Should the summons in this case be solely or mainly a means to compel the appearance of the accused before the court, then its nullity, either for the reason invoked by the appellant or for any other reason, may only affect the power of the court to render judgment by default; it would not affect the court's jurisdiction to try the case once the accused was somehow before it, in spite of the vitiated command. And, since the appellant was present in person before Judge Bourassa, he would have no case at all on this narrow basis and we would not even be required to decide whether or not the command was vitiated for the reason invoked by the appellant.
52. What however does affect the jurisdiction of the court to try the appellant is the validity of the charge and, if the fact that it was in the French language only infringed appellant's rights under s. 133 of the Constitution Act, 1867, it would then be a nullity. In this event, the appellant would have been right in challenging the jurisdiction of the Municipal Court. The question of course arises as the charge does in fact form part of the unilingual summons.
53. This is how Judge Bourassa understood the issue from the start for, at the beginning of his reasons, he wrote:
... l'accusé plaide en droit que la plainte est illégale et nulle, parce qu'elle n'est pas en langue anglaise alors que lui, l'accusé, est de langue anglaise.
Tout le procès repose sur cette question de droit.
All the trial is a question of law based on the fact that the complaint or summons was not made in English while the accused is English‑speaking.
(Emphasis added.)
54. Judge Bourassa first spoke of the alleged nullity of the complaint or charge and then referred to "the complaint or summons" because both are contained in a single document designated as a summons.
55. The real issue then that needs to be decided on the facts in this case, is whether the charge, being expressed in the French language only, and not in the language of the English‑speaking accused, offends the provisions of s. 133 of the Constitution Act, 1867, resulting in a total absence of jurisdiction of the court to try him on this charge. The constitutional question stated in the case should accordingly be read as including this issue.
56. I should add that the charge, triggering as it does the whole judicial proceeding and being essential to its validity, is as much and all the more a process in or issuing from a court as is the command to appear before it, and I agree with what Meyer J. said in the quotation above that:
Summonses and complaints are clearly among the documents covered by the first Blaikie decision.
57. On the other hand, since much of the argument in this Court focussed on the "command" aspect of the summons, this aspect should also be comprised in our decision, together with the "charge" aspect. Under both aspects, the summons is a process in or issuing from the Municipal Court and it is governed by the same rules for both purposes. In these reasons I will generally refer to this instrument under the label which it bears on its face, that is, as a "summons", but one should bear in mind that it is an instrument of a composite nature.
VI‑‑The Appellant's Main Submission
58. The appellant's main submission was stated above. That submission is to the effect that s. 133 of the Constitution Act, 1867 gives to any person, anglophone or francophone, the right to be summoned before any court of Canada and any court of Quebec by a process issued in his own language, at least where the "State" is a party to the proceedings, such as penal or criminal proceedings.
59. This submission is erroneous, in my respectful opinion. It fails to meet the above‑quoted reasons of Hugessen A.C.J. in Walsh which I find conclusive and with which I agree. Furthermore, it is contrary to the plain meaning of s. 133 as construed by this Court in Attorney General of Quebec v. Blaikie, [1979] 2 S.C.R. 1016 (Blaikie No. 1), and Attorney General of Quebec v. Blaikie, [1981] 1 S.C.R. 312 (Blaikie No. 2).
60. Hugessen A.C.J. correctly observed in Walsh that the essential words of s. 133 are the same with respect to the language of Parliamentary debates and to the language of court proceedings and should receive the same construction. It is clear that the rights preserved in Parliamentary debates are those of the speaker only. Those who listen to the speaker cannot have a right to be addressed in the language of their choice without defeating the speaker's own right to use the language of his choice and making the constitutional provisions nonsensical. Also, the speaker might be unilingual and find it impossible to address his listeners in the language of their choice. Furthermore, the choice of the listeners might vary, making it impossible to accommodate each of them. The use of interpreters or simultaneous translation which, in any event, has nothing to do with s. 133, would not meet the essential thrust of appellant's submission that he has the right to be addressed in the language of his choice by the very person or body who is purporting to address him.
61. The same reasoning applies to the language spoken in the courts covered by s. 133 and in the written pleadings in and processes of such courts: the language rights then protected are those of litigants, counsel, witnesses, judges and other judicial officers who actually speak, not those of parties or others who are spoken to; and they are those of the writers or issuers of written pleadings and processes, not those of the recipients or readers thereof. The appellant exercised his constitutionally protected language right when he presented his oral and written argument in English before Judge Bourassa, and the latter exercised his own right when he delivered judgment partly in French and partly in English. In my view, under s. 133 of the Constitution Act, 1867, and apart from other legal principles or statutory provisions such as the Official Languages Act, R.S.C. 1970, c. O‑2, the appellant was not entitled to a summons in English only, any more than to a judgment in English only, from the Municipal Court or from any court contemplated by s. 133, including this Court.
62. The appellant's main submission is not bolstered by his reference to the "State". Whether or not the State is a person or has rights under s. 133, it was held in Blaikie No. 1 that the option to use either language under this section extends to the courts themselves in documents emanating from them or issued under their name or under their authority. As I have said above, the summons is a process in or issuing from the Municipal Court. Furthermore, the issuer of the summons in the case at bar had by law to be either the clerk or a judge of the Municipal Court. These are physical persons whose language rights under s. 133 receive the same protection as those of the appellant.
63. On this last point, I must disagree with the above quoted reasons of Meyer J. to the effect that s. 133 provides two separate rules, one for the languages that may be used by any person in court and the other for the languages that may be used in any pleading or process, "whether by a person or not". No rational basis has been advanced for such a duality of rules. As I already indicated, a proceeding and a process have to emanate from someone, a person, whose language rights are thus protected in the same manner and to the same extent, as the rights of a litigant to speak the official language of his choice in court. I am of the view that there is but one rule in substance and that this co‑called duality of rules is only one of form resulting from a peculiarity of statutory drafting.
64. The appellant invokes what was said in Blaikie No. 2 with respect to the rules of practice, at pp. 332‑33:
Rules of practice are not expressly referred to in s. 133 of the B.N.A. Act. Given the circumstances described above, they are unlikely to have been overlooked but in our view the draftsmen must have thought that they were subject to the section by necessary intendment.
The point is not so much that rules of practice partake of the legislative nature of the Code of which they are the complement. A more compelling reason is the judicial character of their subject‑matter for which s. 133 makes special provision. Rules of practice may regulate not only the proper manner to address the court orally and in writing, but all proceedings, processes, certificates, styles of cause and the form of court records, books, indexes, rolls, registers, each of which may under s. 133, be written in either language. Rules of practice may also prescribe and do prescribe specific forms for proceedings and processes, such for instance as the motion for authorization to institute a class action or a judgment in a class action (Rules of Practice of the Superior Court of the Province of Quebec in civil matters, November 10, 1978, ss. 49 to 56), a proceeding in the Superior Court, a process of the Superior Court. All litigants have the fundamental right to choose either French or English and would be deprived of this freedom of choice should such rules and compulsory forms be couched in one language only.
Furthermore, and as was noted by Deschênes C.J.S.C. (at p. 49 of his reasons [[1978] C.S. 37]), this fundamental right is also guaranteed to judges who are at liberty to address themselves to litigants in the language of their choice. When they so address themselves collectively to litigants as they peremptorily do in rules of practice, they must necessarily use both languages if they wish to safeguard the freedom of each judge.
65. As I understand this passage, there are two reasons why rules of practice must be enacted in both French and English. The first reason is the legislative nature of rules of practice which are the complement of the Code of Civil Procedure. This reason does not help the appellant since the summons in the case at bar is not legislative in nature. The second reason is the necessity to safeguard the right of all litigants as well as that of all and each judge to address others in the language of their choice in judicial proceedings and processes. This second reason makes it plain, in my view, that Hugessen A.C.J. was right in holding that the right or freedom of choice protected by s. 133 is that of the speaker and it goes directly against appellant's main submission.
66. Since s. 133 confers no language right to the appellant as the recipient of a summons, it imposes no correlative duty on the State or anyone else.
67. The only positive duty that I can read in s. 133 is the one imposed on the Houses of Parliament of Canada and the Legislature of Quebec to use both the English and the French languages in the respective Records and Journals of those Houses, as well as the duty to legislate in both languages, that is to enact, print and publish federal and provincial acts in both languages: Blaikie No. 1 at p. 1022. In Forest v. Registrar of Court of Appeal of Manitoba, [1977] 5 W.W.R. 347 at p. 355, it seems to have been suggested by Freedman C.J.M. that s. 23 of the Manitoba Act, 1870, imposed a duty to provide the legislature with simultaneous translation for the purposes of parliamentary debate but, with respect for the contrary view, I fail to see the imposition of any such duty in either provision.
68. A negative duty is also imposed by s. 133 on everyone not to infringe language rights conferred by the section with respect to the language of Parliamentary debates and court proceedings. These are constitutionally protected rights and it would be unlawful for instance to expel a member of the House of Commons or of the Quebec National Assembly on the ground that he uses either French or English in debates, or for a judge of a Quebec or a federal court to prevent the use of either language in his court. But this duty is not the positive one which the appellant invokes.
69. Furthermore, the appellant does not explain how the issuer of a summons can ascertain the language of the recipient or, more relevantly, his preference or choice with respect to the language of the summons: the future recipient is not yet before the court and cannot be put to an election on this subject; nor is any mechanism provided in s. 133 for the purpose of dealing with such an election. Also, since what is guaranteed by s. 133 is a freedom of choice with respect to language rather than the right to use one's own language, if the freedom of choice belongs to the recipient of a summons, he acquires the means to avoid penal consequences, by choosing the language other than the one in which the summons was issued, whatever it was. One sure and practical way, and probably the only way for the issuer to discharge his alleged duty to accommodate the recipient of a summons would be to issue the summons in both the English and French languages, as was suggested in Walsh. This would certainly be permissible and might well be desirable but to impose it as a duty flowing from s. 133 is to make a mockery of the text of this section which would then be construed and applied as if it read not:
...either of those Languages may be used...in any...Process...issuing from any Court...
but
both those Languages shall be used . . . in any . . . Process . . . issuing from any Court . . .
70. No interpretation of a constitutional provision, however broad, liberal, purposive or remedial can have the effect of giving to a text a meaning which it cannot reasonably bear and which would even express the converse of what it says.
71. I agree with the view of Hugessen A.C.J. that "Section 133 does not want for clarity".
72. There exists as yet no authoritative French version of s. 133 of the Constitution Act, 1867, but there is one of s. 23 of the Manitoba Act, 1870, a federal statute ratified by the Constitution Act, 1871. Section 23 of the Manitoba Act, 1870, which corresponds to s. 133, is not less clear than the latter. It provides:
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 Constitution Act, 1867, or in or from all or any of the Courts of the Province. The Acts of the Legislature shall be printed and published in both those languages.
23. L’usage de la langue française ou de la langue anglaise sera facultatif dans les débats des Chambres de la législature; mais dans la rédaction des archives, procès-verbaux et journaux respectifs de ces chambres, l’usage de ces deux langues sera obligatoire; et dans toute plaidoirie ou pièce de procédure par devant les tribunaux ou émanant des tribunaux du Canada, qui sont établis sous l’autorité de la Loi constitutionnelle de 1867, et par devant tous les tribunaux ou émanant des tribunaux de la province, il pourra être également fait usage, à faculté, de l’une ou l’autre de ces langues. Les actes de la législature seront imprimés et publiés dans ces deux langues.
73. Facultatif or "à faculté" are not capable of being construed as meaning obligatoire for, according to Le Petit Robert, they mean the exact opposite. The words facultatif or "à faculté" give an option to someone who, as seen above, has to be he or she who speaks in the Debates or in court, or who writes court proceedings or who issues court processes.
74. A compromise along the lines of the issuance of a bilingual summons has been advanced by the intervener Alliance Quebec, Alliance for Language Communities in Quebec. It is expressed as follows in its factum:
The effect of a demand for an official translation into English or French (or, what is substantially (at least) the same thing, an objection that the process was not ab initio expressed in English or that it was not expressed in French) should be held to have the effect of denying the court jurisdiction to proceed until such an official translation is supplied to the defendant.
...
On the facts of this case, the appropriate ultimate result on the merits (stated in the simplest terms), would be to set aside appellant's conviction and stay further proceedings in the Municipal Court on the summons until a certified translation has been provided to Appellant.
75. This result, on the one hand, is not what the appellant is asking for, as I understand his position, and it represents less than what he is entitled to if he is right. On the other hand, it is not a result which can conceivably be said to flow from s. 133 of the Constitution Act, 1867.
76. If the appellant is correct and the unilingual summons in French offends s. 133 of the Constitution Act, 1867, then the summons including the charge is vitiated beyond correction. It is a complete nullity and the Municipal Court had and has no jurisdiction whatsoever to proceed against him in this case. I believe the appellant is right, in this respect, assuming always the correctness of his main position. The validity of the charge is a condition precedent to the jurisdiction of the Municipal Court, and not merely one suspending that jurisdiction until an official translation is supplied to the appellant and the vice has been cured. On this view, the appellant would be entitled to be discharged, purely and simply. Whether he could be sued again on the same charge with the issuance of a fresh summons in the English language only or in both official languages, is a question which need not be decided.
77. On the other hand, the compromise suggested by this intervener and which would compel the official translation of a summons at the instance of the recipient, differs only in degree but not in kind from the duty to issue an originally bilingual summons, a requirement which, as we have just seen, is clearly not imposed by the explicit provision of s. 133. It is a compromise which amounts in practice to a constitutional amendment of the section.
78. This compromise may have been inspired by reference to early Quebec legislation which provided for the issuance of a summons in the language of the defendant in certain civil cases, albeit at the instance of the plaintiff. Thus, an Ordinance of 1785, 25 Geo. 3, c. 2, mentioned in Blaikie No. 2 at p. 330, provided as follows:
...it is hereby ordained and enacted, that in all causes or matters of property exceeding the sum or value of ten pounds sterling, upon a declaration presented to any one of the Judges of the court of common pleas, by any person, setting forth the grounds of his complaint against a defendant, and praying an order to compel him to appear and answer thereto, such judge shall be, and hereby is empowered and required, in his separate district, to grant such an order, whereby the plaintiff may have and obtain, from the clerk of the court, a writ of summons, in the language of the defendant, to be issued in his Majesty's name and tested by the name of such judge...
79. The duty to observe complete bilingualism with respect to court processes has also been imposed in the past, as in An Act to repeal certain Acts and Ordinances therein mentioned, and to make better provision for the Administration of Justice in Lower Canada, 1843 (Can.), 7 Vict., c. 16, s. XVIII of which provided:
XVIII. And be it enacted, that every writ or process issuing out of any Court of Queen's Bench, (whether in the superior or in the inferior term thereof,) or out of any of the Circuit Courts hereinafter established, shall be in both the English and the French languages, any law, usage or custom to the contrary notwithstanding.
80. The intervener the Société franco‑manitobaine also referred to the Act respecting Municipalities and Roads in Lower Canada, C.S.L.C. 1861, c. 24, ss. 5(17), 7(2) and 27(14), and the Municipal Code of the Province of Quebec, 1870 (Que.), c. 68, s. 224, relating to "special notices", apparently the equivalent of traffic tickets and summons. This section provided:
224. Every special notice must be drawn up or given in the language of the person to whom it is addressed, unless such person speaks a language other than French or English.
The special notice addressed or given to any person who speaks neither the French nor the English language, or who speaks both of these languages, is given to him in either language.
81. I fail to see how these legislative precedents help the appellant. They have been repealed and s. 133 of the Constitution Act, 1867, expressly provides otherwise.
82. A different compromise has been suggested by the Société franco‑manitobaine, namely that a distinction be made between civil proceedings on the one hand, and criminal or penal ones on the other. According to this suggestion, the initiator of civil processes or proceedings would retain the option to choose the language, as was the practice prior to Confederation, but in criminal or penal proceedings, the accused would have the right to be summoned before courts of criminal or penal jurisdiction in the language of his choice. A distinction was made between the two types of proceedings before the federal union as indictments were almost invariably drafted in the English language and English speaking persons were thus summoned and charged in their language before criminal courts. This intervener also argues that a penal or criminal summons emanates from the State, a point I have already dealt with.
83. In my view, this distinction is in no way warranted by the language of s. 133 of the Constitution Act, 1867. It is so elementary and fundamental that it could not have been overlooked or ignored by any lawyer, particularly a legislative or constitutional draftsman, unless the intent was precisely that it should be ignored. This distinction is made explicitly in other provisions of the Constitution Act, 1867, namely ss. 91(27) and 92(14), which vest exclusive legislative competence respectively on the Parliament of Canada and the provincial legislatures over
27. The Criminal Law, except the Constitution of Courts of Criminal Jurisdiction but including the Procedure in Criminal Matters.
and
14. The Administration of Justice in the Province, including the Constitution, Maintenance and Organization of Provincial Courts, both of Civil and of Criminal Jurisdiction, and including Procedure in Civil Matters in those Courts.
84. Section 133 of the Constitution Act, 1867, far from distinguishing between courts of civil and of criminal jurisdiction, and civil and criminal pleadings and processes, applies by its express terms to any Pleading or Process, to any Court of Canada and to all or any of the Courts of Quebec.
85. In my view, the compromise suggested by the Société franco‑manitobaine also amounts to a constitutional amendment beyond the reach of ordinary legislators and far outside the province of any court.
VII‑‑The Historical Record
86. Both the appellant and the Société franco‑manitobaine have gone into the historical background of s. 133 at considerable length to support their main positions.
87. The historical record, in my view, far from supporting their positions, squarely contradicts them. I do not propose to make any exhaustive review of this record but simply to look at what is demonstrated by a few legislative precedents.
88. I have already quoted above three pre‑confederation statutory provisions; the first one, an Ordinance of 1785, supra, provided for the issuance of a summons in the language of the defendant at the instance of the plaintiff in certain civil cases; the second one 1843 (Can.), 7 Vict., c. 16, imposed the duty to observe complete bilingualism with respect to the writs or processes of any Court of Queen's Bench or of the Circuit Courts; the third one, the Act respecting Municipalities and Roads in Lower Canada, supra, provided for the issuance of special notices in the language of the person to whom they were addressed, if such language be either English or French.
89. One could also quote An Act for the establishment of a better Court of Appeals in Lower Canada, 1843 (Can.), 7 Vict., c. 18, s. X of which provided that all writs and processes of that Court:
...shall be in both the English and the French language[s]; any law, usage or custom to the contrary notwithstanding.
90. However, these provisions and others were modified by An Act to amend the Law relative to the Administration of Justice in Lower Canada, 1846 (Can.), 9 Vict., c. 29, which provided, inter alia:
That the eighteenth section of the Act passed in the seventh year of Her Majesty' Reign, and intituled, An Act to repeal certain Acts and Ordinances therein mentioned, and to make better provision for the Administration of Justice in Lower Canada, and so much of the tenth section of a certain other Act, passed in the said seventh year of Her Majesty's Reign, and intituled, An Act for the establishment of a better Court of Appeals in Lower Canada, and of any other Act or Law in force in Lower Canada as requires that any Writ or Process issuing out of any of her Majesty's Courts of Justice therein, should be in both the English and French languages, shall be and the same are hereby repealed, and henceforth any Writ or Process issuing out of any such Court may be either in the English or in the French language; any law, usage or custom to the contrary notwithstanding.
91. Legislation to the same effect was passed in subsequent years leading to Confederation. Thus An Act to amend the Laws relative to the Courts of Original Civil Jurisdiction in Lower‑Canada, 1849 (Can.), 12 Vict., c. 38, provided in s. XIX for the language of the writs and processes of the Superior Court:
... And every such Writ or Process may be either in the English or in the French language, any law, custom or usage to the contrary notwithstanding;
92. Similarly, An Act respecting the Court of Queen's Bench, C.S.L.C. 1861, c. 77, provided in s. 28 for the language of the writs and processes of that court:
... and every such writ and process may be either in the English or in the French language.
93. Finally, An Act respecting the ordinary Procedure in the Superior and Circuit Courts, C.S.L.C. 1861, c. 83, made provision for the language of the writs and processes of the Superior Court:
... and every such writ or process may be either in the English or in the French language;
94. What this historical record demonstrates is that the Fathers of Confederation were quite familiar with the old and thorny problem of language rights; they knew or must have known of the various experiments which had been attempted in this area; and they were provided with a whole panoply of legislative models from which to draw, distinguishing between types of courts and processes, compulsory judicial bilingualism, possible unilingualism in the language of the defendant, compulsory judicial unilingualism in the language of the recipient of a special notice, and, as in the last three examples, optional unilingualism at the option of either the court or the person requesting the issuance of a writ or process.
95. In a historic constitutional agreement, preceded by Quebec Resolution 46, which was carefully redrafted several times, the Fathers of Confederation chose that last mentioned system for judicial purposes combined with compulsory bilingualism for the purposes of legislation. This was noted by Laskin C.J.C. speaking for the whole Court in Jones v. Attorney General of New Brunswick, [1975] 2 S.C.R. 182 at pp. 194‑95:
Among the Quebec Resolutions that were approved at the Conference in 1864, which was a prelude to Confederation in 1867, was Resolution 46, which became Resolution 45 at the London (Westminster Palace Hotel) Conference in 1866. It was as follows:
Both the English and French Languages may be employed in the general Parliament and in its proceedings and in the local Legislature of Lower Canada, and also in the Federal courts and in the courts of Lower Canada.
As it emerged in s. 133, this Resolution had an obligatory aspect added to its provision for the use of English or French. In establishing equality of use of the two languages, s. 133 did so in relation to certain proceedings of a public character in specified legislative operations and in specified Courts, but it went no farther.
96. To repeat, the historical record contradicts the position taken by the appellant and both interveners.
VIII‑‑Communication as the Purpose of Language Rights, and Natural Justice
97. In addition to an historical argument, two distinct but convergent approaches to the interpretation of s. 133 of the Constitution Act, 1867 have been urged upon us.
98. The first approach is focussed on the strict language aspect of the rights conferred by s. 133. Since the purpose of language is communication, s. 133, under this approach, is regarded as introducing a potentially complete or at least a potentially comprehensive scheme of language rights; with the help of a purposive and dynamic judicial interpretation of s. 133, such a scheme would ultimately protect and promote not only the right to use either official language in the active sense, but also the ultimate right to be understood in either of them.
99. The other approach consists in looking at s. 133 as re‑enforcing the appellant's view of his language rights by reading into the section or relating to it some requirement of natural justice and procedural fairness.
100. Attractive as these two approaches may seem at first blush, they should be avoided in my respectful opinion: the first approach flows from a mistaken view of the scope of language rights protected by s. 133; the second approach is based on a confusion as to the respective nature and purpose of s. 133 and the requirements of natural justice.
101. In the Jones case, at p. 193, Laskin C.J.C. had already noted the limited scope of s. 133 in its strict language aspect:
The words of s. 133 themselves point to its limited concern with language rights; and it is, in my view, correctly described as giving a constitutionally based right to any person to use English or French in legislative debates in the federal and Quebec Houses and in any pleading or process in or issuing from any federally established Court or any Court of Quebec, and as imposing an obligation of the use of English and French in the records and journals of the federal and Quebec legislative Houses and in the printing and publication of federal and Quebec legislation.
102. Professor Gérald‑A. Beaudoin also observed in "Le décor historique et constitutionnel" (1983), 14 R.D.G. 227 that s. 133:
[TRANSLATION] ...did not introduce into our constitution a true concept of official languages, merely a kind of embryo bilingualism.
103. I respectfully agree with these observations. Section 133 has not introduced a comprehensive scheme or system of official bilingualism, even potentially, but a limited form of compulsory bilingualism at the legislative level, combined with an even more limited form of optional unilingualism at the option of the speaker in Parliamentary debates and at the option of the speaker, writer or issuer in judicial proceedings or processes. Such a limited scheme can perhaps be said to facilitate communication and understanding, up to a point, but only as far as it goes and it does not guarantee that the speaker, writer or issuer of proceedings or processes will be understood in the language of his choice by those he is addressing.
104. This incomplete but precise scheme is a constitutional minimum which resulted from a historical compromise arrived at by the founding people who agreed upon the terms of the federal union. The scheme is couched in a language which is capable of containing necessary implications, as was held in Blaikie No. 1 and Blaikie No. 2 with respect to certain forms of delegated legislation. It is a scheme which, being a constitutional minimum, not a maximum, can be complemented by federal and provincial legislation, as was held in the Jones case. And it is a scheme which can of course be modified by way of constitutional amendment. But it is not open to the courts, under the guise of interpretation, to improve upon, supplement or amend this historical constitutional compromise.
105. This brings me to the other approach urged upon us and which would have us look at s. 133 as re‑enforcing the appellant's interpretation of his language rights by reading into the section or relating to it requirements of natural justice and procedural fairness. In this connection, the appellant referred in his factum to s. 11(a) of the Canadian Charter of Rights and Freedoms:
11. Any person charged with an offence has the right
(a) to be informed without unreasonable delay of the specific offence;
The requirements of this provision, according to him "serve to supplement the protections provided for in s. 133". And he adds:
Further, the requirements in respect to language rights as provided for in section 133 of our constitution and section 11(a) of our Charter of Rights and Freedoms are re‑enforced and made more explicit in:
R. vs. Coté (1977) 33 C.C.C. (2d) 353, per de Grandpré, J.:
"The `golden rule' as regards the sufficiency of an information is whether the accused was reasonably informed of the transaction alleged against him, thus giving the opportunity of making a full defence and ensuring a fair trial". [Extract from the headnote.]
106. Before I discuss this second approach to the construction of s. 133 of the Constitution Act, 1867, one should bear in mind that the Charter came into force on April 17, 1982, after the trial in the Municipal Court but before the appeal by way of trial de novo. On June 23, 1982, the Quebec National Assembly passed An Act respecting the Constitution Act, 1982, 1982 (Que.), c. 21, which came into force on the same day. Pursuant to s. 33 of the Charter, it provided for the operation of all provincial acts notwithstanding the provisions of ss. 2 and 7 to 15 of the Charter. The constitutional validity of this last act has been challenged and is now before the courts. I will accordingly refrain from expressing any view on this point. I will nevertheless assume, subject to this reservation, that all the provisions of the Charter applied at the date of the trial de novo in the case at bar. I do so simply because the appellant referred to the Charter before this Court. But I wish to say now, that in my respectful opinion and for the reasons explained below, the appellant's rights as guaranteed by the Charter were not violated in this case.
107. I now turn to the consideration of the second approach urged upon us by the appellant with respect to the interpretation of s. 133 of the Constitution Act, 1867.
108. It should be stated at the outset that compliance with s. 133, as this section provides for a minimum constitutional protection of language rights, may very well fall short of the requirements of natural justice and procedural fairness. These requirements protect not language rights but other rights, referred to as legal rights in the Charter, which s. 133 was never intended to safeguard in the first place and to which it is entirely unrelated.
109. A few examples will illustrate this point.
110. Suppose that a person is charged with a criminal offence drafted in either the French or the English language and that person does not understand the language of the charge. It goes without saying that this person cannot be asked to plead and be tried upon the charge in these circumstances. What will happen as a matter of practice as well as of law is that the judge will call upon a sworn interpreter to translate the charge into a language that the accused can understand. But this is so whether the accused speaks only German or Cantonese and has nothing to do with what s. 133 stands for. Provision is made for this different purpose by other enactments relating for instance to interpreters and under other principles of law some of which are now enshrined in the provisions of distinct constitutional or quasi‑constitutional instruments, such as s. 2(g) of the Canadian Bill of Rights and s. 14 of the Charter, also relating to interpreters. See for instance: Attorney General of Ontario v. Reale, [1975] 2 S.C.R. 624; Unterreiner v. The Queen (1980), 51 C.C.C. (2d) 373 (Ont. Co. Ct.); Sadjade v. The Queen, [1983] 2 S.C.R. 361.
111. Similarly, should a judge order in one official language the exclusion of witnesses and should one witness stay in court because he does not understand that language, this witness would have a good defence to a charge of contempt. But this will also be the case for deaf witnesses or for witnesses who speak a language other than either of the two official languages.
112. The principle is further illustrated by what happened in the case at bar. Here is what the appellant writes at pp. 1 and 2 of his factum:
On the morning of the prescribed trial date, the Court, in Appellant's absence, proceeded "ex‑parte" and found Appellant guilty as charged, imposing a sentence of "a fine of $40.00 plus costs or one week in jail".
Appellant, who believed that his trial would take place at the same time of day as did his arraignment, presented himself at 3:00 p.m. on the prescribed date and was informed that his trial had already taken place and that he had been found guilty as charged. Appellant thereupon requested and was granted permission to reinstate his plea of "not guilty" and a new trial date was fixed at 10:00 a.m. on October 19, 1981.
113. It is not clear whether the cause of the misunderstanding had to do with the use of one official language, but what matters from the point of view of procedural fairness is that the appellant succeeded in obtaining an appropriate remedy, namely the rescission of a judgment rendered against him by default.
114. It is axiomatic that everyone has a common law right to a fair hearing, including the right to be informed of the case one has to meet and the right to make full answer and defence. Where the defendant cannot understand the proceedings because he is unable to understand the language in which they are being conducted, or because he is deaf, the effective exercise of these rights may well impose a consequential duty upon the court to provide adequate translation. But the right of the defendant to understand what is going on in court and to be understood is not a separate right, nor a language right, but an aspect of the right to a fair hearing.
115. It should be absolutely clear however that this common law right to a fair hearing, including the right of the defendant to understand what is going on in court and to be understood is a fundamental right deeply and firmly embedded in the very fabric of the Canadian legal system. That is why certain aspects of this right are entrenched in general as well as specific provisions of the Charter such as s. 7, relating to life, liberty and security of the person and s. 14, relating to the assistance of an interpreter. While Parliament or the legislature of a province may, pursuant to s. 33 of the Charter, expressly declare that an Act or a provision thereof shall operate notwithstanding a provision included in s. 2 or ss. 7 to 15 of the Charter, it is almost inconceivable that they would do away altogether with the fundamental common law right itself, assuming that they could do so.
116. This is not to put the English and the French languages on the same footing as other languages. Not only are the English and the French languages placed in a position of equality, they are also given a preferential position over all other languages. And this equality as well as this preferential position are both constitutionally protected by s. 133 of the Constitution Act, 1867. Without the protection of this provision, one of the two official languages could, by simple legislative enactment, be given a degree of preference over the other as was attempted in Chapter III of Title 1 of the Charter of the French Language, invalidated in Blaikie No. 1. English unilingualism, French unilingualism and, for that matter, unilingualism in any other language could also be imposed by simple legislative enactment. Thus it can be seen that, if s. 133 guarantees but a minimum, this minimum is far from being insubstantial.
117. It would constitute an error either to import the requirements of natural justice into the language rights of s. 133 of the Constitution Act, 1867, or vice versa, or to relate one type of right to the other under the pretext of re‑enforcing both or either of them. Both types of rights are conceptually different. Also, language rights such as those protected by s. 133, while constitutionally protected, remain peculiar to Canada. They are based on a political compromise rather than on principle and lack the universality, generality and fluidity of basic rights resulting from the rules of natural justice. They are expressed in more precise and less flexible language. To link these two types of rights is to risk distorting both rather than re‑enforcing either.
118. Before I leave this subject however, I wish to dismiss any suggestion, if there be one, that the rights of the appellant to a fair hearing, as distinct from his language rights, might somehow have been infringed on the facts of this case, and that he might be entitled to be discharged or to have a new hearing on any basis other than s. 133 of the Constitution Act, 1867.
119. I did not understand that such was the position of the appellant. From the beginning to the end of these proceedings, the sole thrust of his argument was his interpretation of s. 133. This is what was stated by Judge Bourassa. In his notice of appeal to the Superior Court, which is subsequent to the coming into force of the Charter, the appellant invoked neither the Charter nor any principle of natural justice or procedural fairness; the only provision he expressly relied upon was s. 133. He did the same in his application for leave to appeal and notice of appeal in the Court of Appeal. In his reasons for judgment at p. 999 Meyer J. alluded to the Charter, either of his own notion or because it was mentioned in argument and, in my opinion, rightly held:
...my decision would be identical whether or not the new Charter of Rights were applicable. To my mind, the only relevant question is the meaning of Section 133 and whether or not it applies in the present instance.
120. The first and only pleadings of the appellant which briefly refer to the Charter and to the requirements of natural justice are his application for leave to appeal to this Court and his factum. Both are to the same effect and I have quoted above the main part of the factum on this point: The Charter and the requirements of natural justice are invoked by the appellant only to re‑enforce his essential submission on s. 133. It is significant also that the constitutional question which the appellant submitted to Ritchie J. and which was accepted by the latter, relates only to s. 133 and not to the Charter. To sum up, the sole purpose of the appellant, as I understand it, has been from the start and throughout these proceedings to vindicate his language rights as an English‑speaking Quebecer the way he understands them, not the rights to a fair hearing which he has in common with everybody else.
121. If I misunderstood the appellant however, I would still be of the view that, on the facts and pleadings of this case, we are not concerned with the Charter, nor with the question whether the appellant was denied a fair hearing or was entitled to a trial in English if that is not what he had.
122. There is nothing in the case to indicate in what language or languages the trial and trial de novo were conducted, except that the appellant argued his case in English before Judge Bourassa. At no point did the appellant allege he did not understand the charge or the case he had to meet; by his own account, he secured a translation of the summons. There is nothing to show that he asked the court for a translation and we need not decide whether he would have been entitled to one.
IX‑‑Conclusions on the Merits
123. I am of the view that the conclusions of Meyer J. and Judge Bourassa are well founded and ought not be disturbed.
124. The constitutional question should be read as including, in addition to the "command" aspect of the summons, the question whether the charge, being in the French language only, and not in the language of the English‑speaking accused, offends the provisions of s. 133 of the Constitution Act, 1867, resulting in a total absence of jurisdiction of the court to try him on this charge.
125. The wording of the constitutional question calls for a few more observations. This question seems to have been modelled on the third question stated by the Manitoba Provincial Court for the Manitoba Court of Appeal in the Bilodeau case:
Did I err in law in convicting the accused of speeding when the summons issued under The Summary Convictions Act and The Highway Traffic Act are [sic] printed and published only in the English language?
126. One does not expect a summons to be published but issued, and I do not believe it was intended to distinguish between the printed parts of the summons and the other parts.
127. The constitutional question being read as I have indicated, I would answer it in the negative.
X‑‑The Jurisdiction of this Court to Entertain the Appeal
128. I have had the advantage of reading the reasons of my colleague, Wilson J. and I agree with her that we have jurisdiction to hear this case.
129. Since the decision of McCarthy J.A. to refuse leave to appeal has the effect of leaving intact the disposition of the case by Meyer J. and Judge Bourassa, which I think is the correct one, I should be content simply to dismiss the appeal.
130. However, had I been of the view that the appellant's case was meritorious, I would have allowed the appeal, set aside the judgments of McCarthy J.A., Meyer J. and Judge Bourassa and discharged the appellant. I would have agreed with Wilson J. that the case should not be returned to the Quebec Court of Appeal by leave of this Court.
131. The Quebec Court of Appeal had already decided the issue on the merits in the Walsh case and this is obviously the reason why McCarthy J.A., who was a member of the coram in Walsh, refused leave to appeal in the case at bar. I believe it would have been improper directly or indirectly to ask the Court of Appeal to reconsider its decision in Walsh, whatever view one might take of this decision. (Vide the reasons of the minority in Paul v. The Queen, [1960] S.C.R. 452, which I find preferable to those of the majority.)
132. But I wish to stress that this is a jurisdiction which, for obvious reasons of policy and comity, we should exercise most sparingly, in those very rare cases where, as in this case, there is a risk that a question of major constitutional importance might otherwise be put beyond the possibility of review by this Court.
XI‑‑Conclusion
133. The constitutional question being read as indicated in these reasons is answered in the negative.
134. The appeal is dismissed with costs. However, there will be no order as to costs for or against the interveners.
The following are the reasons delivered by
135. Wilson J. (dissenting)‑‑This case entails a consideration of s. 133 of the Constitution Act, 1867 and the extent to which (if at all) that section imposes an obligation on the courts of the Province of Quebec to issue summonses and otherwise deal with an individual in either the English or the French language depending upon the language of the individual. This case also raises the question of this Court's jurisdiction to hear a case for which leave to appeal to a provincial court of appeal was denied by the provincial Court of Appeal.
1. The History of the Matter
136. On February 25, 1981 the appellant received a summons issued from the Municipal Court of the City of Montréal instructing him to appear before that court on May 14, 1981 to answer a charge of violating a municipal traffic by‑law. The summons was printed in the French language only, and reads:
à ces causes, nous vous ordonnons, au nom de Sa Majesté, de comparaître devant la Cour municipale de la Ville de Montréal, 775, rue Gosford, à la date fixée pour votre comparution, soit à 10 heures, soit à 15 heures, pour répondre à cette inculpation et être ultérieurement traité suivant la loi.
Appearing on his own behalf at trial, the appellant challenged the jurisdiction of the court to proceed against him on the ground that the unilingual French summons violated his fundamental language rights as an English speaker under s. 133 of the Constitution Act, 1867. The section reads as follows:
133. Either the English or the French Language may be used by any Person in the Debates of the Houses of the 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 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.
(Emphasis added.)
In the course of his reasons, Judge Bourassa of the Municipal Court made extensive reference to Walsh v. City of Montreal (1980), 55 C.C.C. (2d) 299, a decision of the Quebec Superior Court in which Hugessen A.C.J. found that s. 133 does not give the recipient of an initiating summons the right to choose which of the two official languages the summons should employ. As the appellant had admitted the facts alleged against him, Judge Bourassa felt compelled to find him guilty of the offence.
137. In a trial de novo before Meyer J. in the Superior Court, Criminal Division, [1982] C.S. 998, the appellant was again convicted. Meyer J. held that "It may well be desirable or fair that traffic tickets or summonses should be bilingual, to ensure comprehension by the recipient insofar as this is possible, but in my view it is not required by our law" (p. 1000). He premised this conclusion on the wording of s. 133 and the fact that this section had been interpreted in Attorney General of Quebec v. Blaikie, [1979] 2 S.C.R. 1016 (Blaikie No. 1), as establishing the legitimacy of proceedings in either the French or the English language in the courts and tribunals of Quebec. He then cited the decision of this Court in Attorney General of Quebec v. Blaikie, [1981] 1 S.C.R. 312 (Blaikie No. 2), for the proposition that the "Either ... or" language of s. 133 applied equally to such matters as the Rules of Practice of the Quebec courts. Meyer J. concluded that documents such as summonses emanating from the province's courts must be considered constitutionally valid so long as they are issued in one or other of the French or English languages.
138. The Quebec Court of Appeal on December 13, 1982 refused to grant leave to appeal from the judgment of the Superior Court. This refusal formed the basis of the appellant's application for leave to appeal to this Court. Leave was granted on May 17, 1983. A constitutional question was stated for the Court by Ritchie J. on June 21, 1983. It reads as follows:
Does a summons which is printed and published in the French language only and commands an English speaking person to appear before the Courts of Quebec offend the provisions of s. 133 of the Constitution Act, 1867, resulting in a total absence of jurisdiction of the Court to proceed against him?
2. The Ernewein Principle
139. The threshold issue the Court must confront on this appeal is the Court's capacity to review the decision of a provincial appellate court not to grant leave to appeal from a judgment at trial. In Ernewein v. Minister of Employment and Immigration, [1980] 1 S.C.R. 639, the majority of this Court held that the Supreme Court of Canada has no power under s. 31(3) of the Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, to review a decision of the Federal Court of Appeal denying leave to appeal from a decision of the Immigration Appeal Board. Laskin C.J.C. interpreted the stipulation in s. 31(3) that "[a]n appeal lies to the Supreme Court from a final or other judgment or determination of the Federal Court of Appeal" as restricting the Supreme Court of Canada's jurisdiction to entertain appeals to cases in which the Federal Court of Appeal either pronounced on the merits of the appeal or, at a minimum, rendered judgment in an interlocutory matter. Such a restriction would, in Chief Justice Laskin's view, imbue the words "final or other judgment or determination" in s. 31(3) with a meaningful subject‑matter "without including cases in which the intermediate appellate court has refused to entertain an appeal altogether by refusing required leave" (p. 646). Having so concluded, he then went on to add that this reasoning was equally applicable under s. 41(1) of the Supreme Court Act, R.S.C. 1970, c. S‑19, to cases in which a provincial court of appeal had refused to grant required leave. And, indeed, the reasoning in Ernewein was in fact applied under s. 41(1) in Nicholson v. Haldimand‑Norfolk Regional Board of Commissioners of Police, [1981] 1 S.C.R. 92.
140. If taken literally, the interpretation put upon s. 41(1) of the Supreme Court Act in Ernewein and Nicholson provides a complete answer to the present appeal; that is to say, the appeal would have to be dismissed as this Court would have no jurisdiction either to entertain the merits of the case or to review the Quebec Court of Appeal's exercise of discretion in refusing to grant leave. I cannot accept that interpretation of s. 41(1). This is not to say that Chief Justice Laskin's reasoning in Ernewein was not based upon sound principles of deference to judicial decisions rendered in exercise of a discretionary power. It clearly was. Where an appellate court is provided with the statutory authority to control its own docket through the leave granting process and its discretion is exercised in a judicial manner, an attitude of deference towards its decisions is entirely appropriate. As Laskin C.J.C. stated at pp. 646‑47:
There are so many considerations that enter into a refusal to give leave as to make the matter one peculiarly for the experienced judgment of the Court from which leave is sought.
...
It is my view that considerations of judicial comity should operate in this respect, and I do not think they should depend on whether or not reasons are given for refusing to hear an appeal.
It is, however, a quantum leap to go from a posture of deference and "judicial comity" to an absolute abrogation of this Court's jurisdiction to exercise its general supervisory power over the courts below. Such an interpretation takes a sound legislative policy and well‑founded principles of judicial review and stretches them to an extreme which is, in my view, impossible to support in view of the statutory language in issue.
141. Under s. 41(1) of the Supreme Court Act this Court retains the discretionary power to interfere with any final or other judgment of the intermediate appellate courts which raises an issue of national importance. This discretion is itself broadly phrased so as to include any case with respect to which " ... the Supreme Court is of the opinion that any question involved therein is, by reason of its public importance or the importance of any issue of law or any issue of mixed law and fact involved in such question, one that ought to be decided by the Supreme Court or is, for any other reason, of such a nature or significance as to warrant decision by it...." While a certain amount of deference to the undoubted competence of intermediate appellate courts to control their own leave granting process is called for, it is equally evident that this Court's jurisdiction to exercise its own discretion in intervening in such decisions is not statutorily confined.
142. The proposition that under s. 41(1) the Court has jurisdiction to intervene even in the case of discretionary decisions of intermediate appellate courts is supported by other provisions of the Supreme Court Act. Section 44, for example, provides that the Court has no power to hear an appeal from a judgment or order made in the exercise of judicial discretion except where leave to appeal is granted by this Court pursuant to s. 41 of the Act. The section 44 restriction on the Court's power would clearly apply to appeals arising under s. 38 of the Act, i.e., where a provincial court of appeal had granted leave to appeal to the Supreme Court of Canada. It would also apply to appeals arising under s. 39 of the Act, i.e., where the parties have agreed to appeal a judgment of a lower court directly to the Supreme Court of Canada instead of to the provincial Court of Appeal. Accordingly, in the less usual situations in which leave to appeal to this Court is not granted by a panel of this Court, the statutory jurisdiction excludes appeals from the exercise of judicial discretion. On the other hand, the explicit exception of s. 41 from the s. 44 restriction serves to indicate that where the route to this Court is the more usual one, i.e., where leave to appeal is granted by this Court itself, its jurisdiction is not restricted to non‑discretionary decisions. Rather, under s. 41 of the Act the Court's jurisdiction is confined only by its own exercise of discretion in determining which decisions of an intermediate appellate court are of sufficient national importance to warrant a grant of leave.
143. It was stated in R. v. Gardiner, [1982] 2 S.C.R. 368, that while there are many instances in which this Court is justifiably reluctant to intervene in decisions of the courts below, it is incorrect to confuse this attitude of reluctance with lack of jurisdiction. Dickson J. (as he then was) came to his conclusion as to the broad ambit of the Court's jurisdiction after a thorough survey of its history and a consequent appreciation of its expanded role and increased significance since the days when most appeals were as of right and the Supreme Court of Canada was itself an intermediate appellate court. Given this expansion, the broadly phrased statutory language in which the Court's jurisdiction was framed, and the role of the Court as the ultimate appellate tribunal, he concluded that in the absence of any irrefutable indication to the contrary, the Court's jurisdiction should not be restrictively construed. He said at p. 397:
The function of this Court is ... to settle questions of law of national importance in the interests of promoting uniformity in the application of the law across the country, especially with respect to matters of federal competence. To decline jurisdiction is to renounce the paramount responsibility of an ultimate appellate court with national authority.
144. This line of reasoning is, of course, all the more pertinent where the issue at stake is one of constitutional law. To quote from the reasons of Pigeon J. in dissent in Ernewein at p. 668:
In my view it is important for this Court in the discharge of its general duty of ultimate supervision over the application of the law throughout Canada, to avoid putting any important question of law beyond any possibility of review.
145. Section 133 of the Constitution Act, 1867 is a provision of the utmost significance to members of the minority language group in Quebec and elsewhere in Canada. It has an impact not only on the rights of individuals when they confront the judicial branch of the state but also on the status generally of Canada's two official languages. The national importance of such an issue would be hard to gainsay as would also the appropriateness of this issue's being considered in the nation's highest court. Indeed, given the recently expanded role of the Court in constitutional review under the Constitution Act, 1982, a broad view of the Court's jurisdiction would seem to be essential. Accordingly, s. 41(1) of the Supreme Court Act (and its cognate in s. 31(3) of the Federal Court Act), in its conferring of jurisdiction on the Court to review "any final or other judgment" of a court below, must be given a large and liberal interpretation. While the Court should maintain an attitude of deference to the exercise of judicial discretion by intermediate appellate courts, it undoubtedly has the jurisdiction and should not hesitate to interfere with discretionary decisions on those rare occasions when it perceives legal principles of national, and more particularly constitutional, significance to be at stake. To the extent that the Court's earlier decisions in Ernewein and Nicholson are inconsistent with this view, I would respectfully suggest that they should not be followed.
146. It is important to note that the right of appeal from the decision of any court on a summary conviction offence, such as the one with which we are concerned on this appeal, is statutory. Likewise, the corollary power of the appellate court to grant or deny leave as it sees fit: see R. v. Joseph (1900), 6 C.C.C. 144 (Que. Q.B.) In the present case the appellant's application for leave to appeal to the Quebec Court of Appeal was brought under s. 108 of the Summary Convictions Act, R.S.Q. 1977, c. P‑15, which provides:
108. An appeal lies to the Court of Appeal, with leave of that court or of a judge of that court, from any judgment of the Superior Court rendered under the authority of this act, if the party making the application shows a sufficient interest to warrant decision on a question of law only.
It is this statutory provision which establishes and delineates the scope of the Quebec Court of Appeal's power to grant or deny leave to appeal. Once the applicant establishes that he has a sufficient interest in the case and is raising a question of law alone, the court's discretion is triggered and it is unfettered by any statutory restrictions. It is quite evident that the appellant, as an accused person in a summary conviction offence, can meet the first requirement. Moreover, he admits all the facts alleged against him. Accordingly, his constitutional challenge to Quebec's unilingual court summons arises as a question of law alone. While no reasons were given for rejecting the application (it not being the practice to give reasons) it may be safely assumed that the Court was of the view that it had already taken a position on the issue raised by the proposed appeal in rejecting an application for leave to appeal in Walsh v. Ville de Montréal, Mtl. C.A., November 10, 1980 (unreported). Montgomery J.A. endorsed the record on the Walsh application as follows:
[TRANSLATION] Application dismissed with costs fixed at $50.00, the whole for the reasons given by Hugessen C.J.
Little would have been achieved therefore by the Quebec Court of Appeal's granting leave in the instant case. It had already adopted the reasons of Hugessen A.C.J. in Walsh, supra.
147. It is of some interest to note that the Quebec Court of Appeal, in disposing of the application in Walsh, elected to dismiss the application for leave for the reasons given by Hugessen A.C.J. rather than granting the application and dismissing the appeal for the reasons given by the Associate Chief Justice. The latter method of procedure avoids the Ernewein problem entirely and is, in my view, to be preferred where in denying leave the Court has in fact considered the substantive issue and it is its decision on the substantive issue which has caused it to dismiss the application.
148. Given then that McCarthy J.A. acted within the bounds of his discretion in denying leave in this case, the Court is squarely confronted with the tension which unquestionably exists between the Ernewein principle and the Court's very broad jurisdiction under the Supreme Court Act. Section 41(1) requires the Court to function in an ultimate supervisory capacity with respect to questions of national public importance while Ernewein contemplates an attitude of deference toward judicial decisions validly taken by the court below in exercise of a statutory discretion. The broad terms in which the Court's role is expressed in s. 41(1), however, serve to indicate that the principle of deference underlying Ernewein should not be seen as requiring the Court to abdicate its supervisory role by denying itself jurisdiction in a case of major constitutional importance such as the one before us. The national significance of the issue must surely displace the deferential posture which would otherwise be appropriate. I would conclude that the tremendous importance of the constitutional issue raised in this case makes the restraint with which such a decision of an intermediate appellate court would normally be approached inappropriate and that the Court is therefore free to consider whether on its merits the Superior Court decision of Meyer J. requires further scrutiny at the appellate level.
3. Language Rights Under s. 133
149. In Blaikie No. 1, supra, this Court found that s. 133 of the Constitution Act, 1867 gave persons involved in proceedings in the courts of Quebec the option to use either French or English in any pleading or process, including oral argument, and that this guarantee could not be modified by unilateral act of either the federal or Quebec Legislature. This line of reasoning was taken one step further in Blaikie No. 2, supra, in which the Court held that matters of an essentially judicial character such as rules of court were subject to the s. 133 right "by necessary intendment" and that persons would be deprived of the right if rules and prescribed forms for court proceedings and processes were couched in one language only. Quoting from the judgment of the Court at p. 332:
Rules of practice are not expressly referred to in s. 133 of the B.N.A. Act. Given the circumstances described above, they are unlikely to have been overlooked but in our view the draftsmen must have thought that they were subject to the section by necessary intendment.
The point is not so much that rules of practice partake of the legislative nature of the Code of which they are the complement. A more compelling reason is the judicial character of their subject‑matter for which s. 133 makes special provision. Rules of practice may regulate not only the proper manner to address the court orally and in writing, but all proceedings, processes, certificates, styles of cause and the form of court records, books, indexes, rolls, registers, each of which may under s. 133, be written in either language. Rules of practice may also prescribe and do prescribe specific forms for proceedings and processes, such for instance as the motion for authorization to institute a class action or a judgment in a class action (Rules of Practice of the Superior Court of the Province of Quebec in civil matters, November 10, 1978, ss. 49 to 56), a proceeding in the Superior Court, a process of the Superior Court. All litigants have the fundamental right to choose either French or English and would be deprived of this freedom of choice should such rules and compulsory forms be couched in one language only.
(Emphasis added.)
150. The first submission made by the appellant and by the intervenors on his behalf is that it takes no great conceptual leap (if, indeed, it takes any) to accept that items such as a summons commanding a person to appear in court fall into the category discussed in Blaikie No. 2. I agree with the appellant on this issue. There can be no doubt about the "judicial character" of a summons. Indeed, it would be hard to envisage a more "judicial" document than a command or citation issuing from a court requiring the recipient to attend before it. It is, in my view, a "process" of the Court within the meaning of the phrase employed in s. 133 "... or in any Pleading or Process ... issuing from ... any of the Courts of Quebec". Indeed, in Jowitt's Dictionary of English Law (2nd ed. by John Burke, 1977, vol. 2) the following definition of "process" is advanced:
Process, the proceedings in any action or prosecution, real or personal, civil or criminal, from the beginning to the end; strictly, the summons by which one is cited into a court, because it is the beginning or principal part thereof, by which the rest is directed.
(Emphasis added.)
151. It is the further submission of the appellant that a right conferred by law on an individual entails a correlative obligation on the part of the state and that his or her right would be illusory if the state were not obliged to respect it. I pause to comment that such a proposition is not novel. Indeed, it would seem to be a basic proposition of administrative law where, for example, an individual's right to a just decision has in many contexts been held to impose a duty on the administrator to provide some type of hearing: see Nicholson v. Haldimand‑Norfolk Regional Board of Commissioners of Police, [1979] 1 S.C.R. 311. Similarly in the realm of constitutional law the right of an individual to be free from any unreasonable search and seizure has been treated as imposing an affirmative obligation on the part of the state to require that the police obtain a search warrant where they have reasonable and probable grounds to believe that an offence has been committed: see Hunter v. Southam Inc., [1984] 2 S.C.R. 145. The appellant argues by analogy that s. 133 having been held to entitle the litigant to use his or her own language in judicial proceedings, it must also require the state to use that language in official court documents directed to him or her. To assess the merits of this submission it is necessary to take a closer look at what is meant by a "right" in law.
4. The Nature of Legal "Rights"
152. I agree with those legal philosophers who say that the word "right" is chameleon‑like, that it is used in different senses in different contexts and that, strictly speaking, it has no counterpart in the world of fact. Hohfeld in particular emphasized the importance of "differentiating purely legal relations from the physical and mental facts that call such relations into being": see W. N. Hohfeld, Fundamental Legal Conceptions (1923), at p. 27. H. L. A. Hart considered it futile even to ask the question what is a right? Such a question permitted of no useful answer because it was the wrong question: see H. L. A. Hart, "Definition and Theory in Jurisprudence" (1954), 70 L.Q.R. 37, at p. 48. He agreed with Hohfeld that it is only when the abstract term is tied into a factual situation that it has any meaning at all.
153. Austin was one of the early legal theorists who sought to break a right down into its constituent elements: see Austin on Jurisprudence (5th ed. by R. Campbell, 1885), vol. 1. He wrote at p. 284:
To every legal right, there are three several parties: namely, a party bearing the right; a party burthened with the relative duty; and a sovereign government setting the law through which the right and the duty are respectively conferred and imposed. A sovereign government cannot acquire rights through laws set by itself to its own subjects. A man is no more able to confer a right on himself, than he is able to impose on himself a law or duty. Every party bearing a right (divine, legal, or moral) has necessarily acquired the right through the might or power of another: that is to say, through a law and a duty (proper or improper) laid by that other party on a further and distinct party.
And at p. 347:
A relative obligation is incumbent upon one party, and correlates with a right residing in another party. Changing the expression, A relative obligation corresponds or answers to a right, or implies, and is implied by, a Right. Where an obligation is absolute, there is no right with which it correlates. There is no right to which it corresponds or answers. It neither implies, nor is implied by a right. Here, as elsewhere, the term `absolute' is a negative or privative expression. Here, as elsewhere, it denotes the absence of an object to which the speaker or writer expressly or tacitly refers.
But, in order to the complete explanation of a negative or privative expression, we must first explain the object of which it denotes the absence. Consequently, I shall begin with rights, and with the obligations which are implied by rights; and I shall then proceed to the obligations which have no corresponding rights, or which (in a word) are absolute.
154. Austin distinguished "rights" from "liberties". Rights arose by virtue of a correlative duty on someone else. "Liberties" involved no such correlative duty; they were simply the absence of legal restraint, a condition of legal non‑restraint of one's natural freedom of action. However, as Stone points out (Julius Stone, The Province and Function of Law (1946)) Austin was unsure of the validity of this distinction. Austin writes, op. cit., at p. 356:
Liberty and Right are synonymous; since the liberty of acting according to one's will would be altogether illusory if it were not protected from obstruction. There is however this difference between the terms. In Liberty, the prominent or leading idea is, the absence of legal restraint: whilst the security or protection for the enjoyment of that liberty is the secondary idea. Right, on the other hand, denotes the protection and connotes the absence of Restraint.
If the protection afforded by the law be considered as afforded against private persons, the word Right is commonly employed. If against the Government, or rather against some member of the Government, Liberty is more frequently used; e.g. the Liberties of Englishmen. Liberty and Right are not however always coextensive, since the security for the enjoyment of the former may in part be left to the moral and religious sanctions.
Stone states, op. cit., at p. 118:
Austin himself indeed seemed on occasion to distinguish between "a right" in the strict sense, and "a liberty", the former implying a corresponding duty on the part of another, as a right to a debt, or to performance of a contract; the latter implying no such duty, as "a liberty" to walk upon your neighbour's land with his gratuitous license, or to whistle while passing his house along the highway. Austin saw the distinguishing mark of a liberty in the mere absence of legal restraint. But he seems finally to have abandoned the distinction and the use of the term "liberty" except for literary variation, on the ground that a liberty without such a protective duty in others was of no legal significance; while contrarily if there were such a duty, then the "liberty" was better included under the conception of a right.
155. Hohfeld built upon Austin's analysis of rights and, adopting Hegel's theory of needs and reciprocal obligations as the constituent elements of a civil society (see G. W. Hegel, Philosophy of Right (trans. Knox, 1942)), developed an analytic framework breaking down the general term "right" into a number of specific "situations and relationships". He called these "jural correlatives". One such correlative was right/duty. Hohfeld, however, saw duty as the basic concept and rights as derivative therefrom rather than the other way round. Two distinct schools of thought emerged from this debate as to whether duty preceded right or vice versa but little seems to hinge on this from the point of view of these reasons. The significant concept is right/duty as a jural correlative.
156. Salmond on Jurisprudence (11th ed. by Glanville Williams, 1957), seems to have agreed that rights and duties are correlative when dealing with legal rights stricto sensu, but when the word "rights" is used more loosely then duties need not correspond to such rights. He says at p. 271:
Just as my legal rights (in the strict sense) are the benefits which I derive from legal duties imposed upon other persons, so my legal liberties (sometimes called licences or privileges) are the benefits which I derive from the absence of legal duties imposed upon myself. They are the various forms assumed by the interest which I have in doing as I please. They are the things which I may do without being prevented by the law. The sphere of my legal liberty is that sphere of activity within which the law is content to leave me alone. It is clear that the term right is often used in a wide sense to include such liberty. I have a right (that is to say, I am at liberty) to do as I please with my own; but I have no right and am not at liberty to interfere with what is another's. I have a right to express my opinions on public affairs, but I have no right to publish a defamatory or seditious libel. I have a right to defend myself against violence, but I have no right to take revenge upon him who has injured me.
The interests of unrestrained activity thus recognised and allowed by the law constitute a class of legal rights clearly distinguishable from those which we have already considered. Rights of the one class are concerned with those things which other persons ought to do for me; rights of the other class are concerned with those things which I may do for myself. The former pertain to the sphere of obligation or compulsion; the latter to that of liberty or free will. Both are legally recognised interests; both are advantages derived from the law by the subjects of the state; but they are two distinct species of one genus.
(Emphasis added.)
Salmond commented on the ongoing debate as to whether or not rights and duties were necessarily correlative. He said (at pp. 264‑65):
The question has been debated whether rights and duties are necessarily correlative. According to one view, there can be no right without a corresponding duty, or duty without a corresponding right, any more than there can be a husband without a wife, or a father without a child. For, on this view, every duty must be a duty towards some person or persons, in whom therefore, a correlative right is vested. And conversely every right must be a right against some person or persons, upon whom, therefore, a correlative duty is imposed. Every right or duty involves a vinculum juris or bond of legal obligation, by which two or more persons are bound together. There can therefore be no duty unless there is some one to whom it is due; there can be no right unless there is some one from whom it is claimed; and there can be no wrong unless there is some one who is wronged, that is to say, whose right has been violated.
The opposite school distinguishes between relative and absolute duties, the former being those which have rights corresponding to them, and the latter being those which have none. This school conceives it to be of the essence of a right that it should be vested in some determinate person, and be enforceable by some form of legal process instituted by him. On this view, duties towards the public at large or towards indeterminate portions of the public have no correlative rights; the duty, for example, to refrain from committing a public nuisance.
The dispute seems to be a typical example of a verbal controversy, which like every other verbal controversy is devoid of practical consequences. We may consider as a test case the situation where trustees hold property on trust for "religious purposes". This is a good charitable trust, even though there is no ascertained beneficiary; and the trustees are under a duty not to use the property for any but religious purposes. To whom, then, is the duty owed? If owed to anybody it must be owed to the public at large, or to some indeterminate portion of the public, or to the state, or to the Crown as representing the state. But it makes no difference whether we say that the duty is owed in one of these ways or not owed to anyone. The law in any event is clear, namely that the duty is enforced by the Attorney‑General in his official capacity as a servant of the Crown.
157. In the late 1950's a number of Canadian theorists were prompted to consider the essential nature of rights in response to the proposed Canadian Bill of Rights. Their views found their way into the reports of the McRuer Royal Commission Inquiry into Civil Rights, 1968. An article by W. R. Lederman, "The Nature and Problems of a Bill of Rights" (1959), 37 Can. Bar Rev. 4, is of particular interest. Lederman agrees that the basic concept in the right/duty relationship is that of duty. He says at pp. 5‑6:
The basic jural conception, as Kelsen emphasizes, is that of duty‑‑of a bond of legal obligation subsisting between two persons. A is bound by contract to pay B one hundred dollars‑‑here we have a single bond of specific obligation subsisting between two designated persons which, looked at from A's point of view is a duty, and looked at from B's point of view is a right. The thing to notice for present purposes is how specific this legal relationship is both respecting the persons concerned and what the one is to do for the other. Of course the specific conduct in a right‑duty relationship may be and often is negative rather than positive. When this is so oftentimes we find many persons on the duty side of the equation. For example, this is the basis of the conception of property in the law‑‑A is the owner and occupier of Blackacre, which means that all other persons are under a duty to refrain from making entry on Blackacre except as A permits. Here we see that the holder of the right and the forbidden conduct are both definite and specific. And on the duty side of this picture all comers are affected by present obligation or duty, and this too is definite and specific. Also, much of the criminal law consists of closely defined prohibitions (negative duties) addressed to all comers. Strictly speaking, it is to these relationships of presently subsisting specific obligation that the use of the words duty and right ought to be confined.
Lederman, too, contrasts "rights" and "liberties" or "freedoms". He says at p. 7:
The concept of liberties or freedoms in a duly precise scheme of legal terminology is the concept of residual areas of option and opportunity for human activity free of specific legal regulation. In such areas of conduct there are neither affirmative legal prescriptions nor legal prohibitions‑‑a man is at liberty to act or do nothing as he chooses, free of obligatory instruction by the law either way.
158. Bowker, in his article "Basic Rights and Freedoms: What are they?" (1959), 37 Can. Bar Rev. 43, also distinguishes between rights and freedoms. He says at p. 43:
In speaking of basic rights and freedoms we think of the individual in relation to the state. He may claim that the state should leave him alone and not interfere with him in certain activities‑‑he demands liberty or freedom. Again he may claim the assistance of the state in obtaining for him fair treatment from a branch of government or from an individual. He insists on the state securing to him his "rights".
159. It seems to me then that there is substantial support in legal theory for the appellant's submission that right and duty are correlative terms and I would accept that if s. 133 confers a right on a litigant to use his or her own language in court (which appears to be accepted in Jones v. Attorney General of New Brunswick, [1975] 2 S.C.R. 182, and in both Blaikies), then there is a correlative duty on the state to respect and accommodate that right.
160. It is argued, however, that no such correlative duty can be imposed on the state under s. 133 because of the antithetical use of the words may/either and shall/both in the section. It is pointed out that shall/both is used in relation to the language of the records and journals of the legislatures of Canada and Quebec and in relation to the language in which the statutes of Canada and Quebec are printed and published. They must be in both languages. But may/either is used in relation to the language of the debates in both Houses and in relation to the language of the courts in both jurisdictions. These may be in either language. It is submitted that had the legislators intended to compel a particular language to be used in the courts in any given situation it would not have used may/either; it would have used shall/both. How valid is this submission?
161. In my opinion, it has no validity because it fails to take account of the "subject" of the provision, i.e., the person to whom the different parts of the section are addressed. Two parts are addressed to the state and two parts to the citizen. The parts addressed to the state are mandatory; they impose an obligation on the state; you must keep bilingual records and journals of both Houses and you must print and publish your statutes in both languages. Clearly this is mandatory on the state so that the citizens speaking either language can understand them. The parts addressed to the citizen, on the other hand, confer rights on the citizen; you may use your own language, English or French, in parliamentary debates and in court proceedings. The purpose again is to facilitate understanding by the citizen regardless of language. It would be quite inappropriate to use both/shall in conferring rights although perfectly appropriate in imposing obligations. The intention of the legislators was clearly to present the citizen with an option with respect to language in debates and in the courts. Had the legislators intended to require totally bilingual proceedings in the courts it would have aimed the directive at the state (as in the case of records and journals and legislation) and used shall/both. It did not do so. It validated the use of either language and gave the litigant the option. Similarly, with respect to the debates in both Houses it wished to provide an option to the speaker as opposed to giving a directive to the state that both must be used. I do not believe that the use of may/either in relation to the use of language in the courts was intended to provide an option to the state. It was, in my view, intended to provide an option to the citizen. But the provision of that option to the citizen has implications for the state which I have described as its correlative duty.
162. As is pointed out in Coode, On Legislative Expression (2nd ed. 1852), referred to with approval in Driedger, Construction of Statutes (2nd ed. 1983), the legislature sometimes proceeds by conferring a right, leaving the correlative duty unexpressed but implied and sometimes it proceeds by imposing an obligation, leaving the correlative right unexpressed but implied. It seldom does both. Quoting from pp. 8‑9:
A law, then, can operate in two ways: it can confer the Right, Privilege, or Power directly, and it can impose the corresponding Obligation directly. It is rarely, however, that both are done in the same law. Either the Right, or Privilege, or Power, is created,‑‑as that A. may enjoy the Rights of a natural born subject, or may marry again; that B. shall have the Privilege of trading exclusively to the East Indies, or of measuring all the cloth brought to a certain market, taking a fee for it; or that C. shall have the Power, in a certain case, to imprison another; and the corresponding Obligations are implied, that is, they are left to result from the declaration of the Right, Privilege, or Power: or more ordinarily the Obligation is alone expressed, and the resulting Right, Privilege, or Power is left to be enjoyed through the practical operation of the Obligation.
163. It seems to me that in s. 133 we have an excellent illustration of Coode's point. In relation to the records and journals and the legislation of both jurisdictions the obligation is imposed and it is directed to the state. The right of the citizen is implied. In the case of the debates and language in the courts the right is conferred and it is directed to the citizen; the obligation on the state is implied.
164. The real difficulty presented by this case is, in my view, not to determine whether or not there is an obligation on the state by virtue of the right conferred on the citizen‑‑I think there clearly is‑‑but what the content of that obligation is. Does it require the entire proceedings to be conducted in the language of the litigant? Or can the language right be accommodated through the use of translation? Does the content of the duty differ depending on whether the proceedings are penal, with the state as adversary, or civil, with another private litigant who possesses the same right as adversary? Fortunately, we do not have to answer all these questions on this appeal. The issue before us is relatively narrow. What is the content of the Crown's duty with respect to summonses in penal proceedings? Can they be in either French or English at the option of the Crown regardless of the language of the recipient? Must a translation be made available to an accused who finds the summons is not in his or her language? Do summonses have to be bilingual?
165. I start from the premise that the essence of language is communication and that implicit in the notion of language rights in the context of court proceedings is the ability both to understand and to be understood. If this is correct, it is clearly not enough that the litigant has the right to use his or her language if those dealing with him or her are using a different language. Indeed the specific and often urgent necessity of clear communication in the course of litigation is a feature of the fundamentally social function of language. This is the thrust of Paul Weiler's observations when he says of language in "Rights and Judges in a Democracy: A New Canadian Version" (1984), 18 U. Mich. J.L. Ref. 51 at p. 55, footnote 12:
Not only does it shape the way an individual thinks and views the world, language is also an inherently social activity. It is not enough to have a constitutional right to speak the language of one's choice. One needs to have listeners who can understand.
The same sentiment is reflected in the recent statement of this Court in Reference re Manitoba Language Rights, [1985] 1 S.C.R. 721 at p. 744 namely that:
Language bridges the gap between isolation and community, allowing humans to delineate the rights and duties they hold in respect of one another, and thus to live in society.
166. Although the notion of the fundamental link between language and social interaction has a conceptual coherence in its own right, as Canadians we cannot ignore the special place that linguistic rights have come to occupy in Canadian jurisprudence because of the peculiarities of our history. That history not only gives an added dimension and importance to the proposition that the essence of language is communication, but it also serves as an interpretative aid in judicial exposition of the ambiguous phrasing in s. 133. "The Court", Sir George Jessel, M.R., remarked in 1877, "is not to be oblivious ... of the history of law and legislation" (Holme v. Guy (1877), 5 Ch. D. 901 at p. 905), and indeed the current challenge faced by this Court in the delineation of Charter rights has led to a reaffirmation of the assistance to be gained from placing broadly phrased constitutional guarantees in their "proper linguistic, philosophic and historical contexts" (Dickson J. (as he then was) in R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295, at p. 344). What assistance then is to be gathered from the legislative history of s. 133?
5. The Legislative History of s. 133:
167. This Court pointed out in Blaikie No. 2 (at p. 330) that:
The status of English and French in Quebec courts under s. 133 of the B.N.A. Act exhibits a continuous practice going back almost to the beginning of the British rule.
168. A survey of the early legislation supports the view expressed by Herbert Marx "Language Rights in the Canadian Constitution" (1967), 2 R.J.T. 239 at p. 241, that concern about French and English language rights in relation to the judicial system did not begin with their entrenchment in s. 133 of the Constitution Act, 1867. Indeed, an examination of various pre‑1867 legislative provisions illustrates clearly the dual nature of the language question in Canada.
169. One of the first pieces of legislation relevant to our inquiry is an Ordinance passed in 1785, 25 Geo. 3, c. 2, which explicitly recognizes not only the litigants' linguistic needs, but also the state's duty to meet those needs by providing translations of the court's processes.
an ordinance
To regulate the proceedings in the courts of civil judicature, and to establish Trials by Juries in actions of a commercial nature and personal wrongs to be compensated in damages.
whereas it is necessary for the ease and conveniency of his Majesty's subjects who may have actions to prosecute in the courts of civil judicature established in this province, that the mode of administering justice in the said courts should be clearly ascertained and rendered as plain as possible, be it therefore ordained and enacted by his honour the Lieutenant‑governor and commander in chief of this province, by and with the advice and consent of the legislative council thereof, and by the authority of the same it is hereby ordained and enacted, that in all causes or matters of property exceeding the sum or value of ten pounds sterling, upon a declaration presented to any one of the Judges of the court of common pleas, by any person, setting forth the grounds of his complaint against a defendant, and praying an order to compel him to appear and answer thereto, such judge shall be, and hereby is impowered and required, in his separate district, to grant such an order, whereby the plaintiff may have and obtain, from the clerk of the court, a writ of summons, in the language of the defendant, to be issued in his Majesty's name and tested by the name of such judge, to be directed to and executed by the sheriff of the district where such court shall have jurisdiction, and in which the defendant may be or doth reside, commanding such defendant to be and appear in such court, to answer to the plaintiff, on the day appointed by such judge in the order on the declaration, regard being had to the season of the year as well as to the distance of the defendant's abode or place of service from the place where the court may sit.
(Emphasis added.)
170. Although not directly relevant to the facts of the present case the following legislation (1787), 27 Geo. 3, c. 1, dealing with jury trials reflects a similar concern about accommodating the language needs of the parties.
an ordinance
To regulate the proceedings, in certain cases, in the Court of King's Bench, and to give the subject the benefit of Appeal from Large Fines.
whereas it is difficult to find jurors in the towns of Quebec and Montreal, who are proprietors of freehold, It is enacted by His Excellency the Governor and Legislative Council, that in all inquests and trials by jury in criminal cases, it shall be no good challenge or exception that the juror is not a freeholder, if such juror, being otherwise qualified, is in the actual possession of lands, tenements, or real estate, charged with, and paying an annual rent of fifteen pounds or upwards, and upon any such inquest or trial the defect of the pannel in petty jurors, so qualified, may be supplied, as often as it happens, by a tales, as in other ordinary cases, at the discretion of the court, in such manner as the said court shall adjudge proper, to give the party prosecuted, in any criminal cause, jurors for his trial, one half of whom at the least, may in the judgment of the court, be competently skilled in the language of his defence, if the same be either the English or French language.
(Emphasis added.)
171. In the case of Veuillette v. The King (1919), 58 S.C.R. 414, which interprets a more recent version of the same provision as it appears at 1864 (Can.), 27 & 28 Vict., c. 41, s. 7, subs. (2), the majority was of the view that an accused who elects to be tried by a mixed jury has a right to have the trial conducted in both languages. Mignault J. described the method of proceeding as follows at p. 430:
[TRANSLATION] Returning now to 27‑28 Vict. c. 41, it is clear that the provision in question is illusory if, in a case before a mixed jury, the testimony is not translated from French into English and vice versa, and if at least the gist of the charge by the presiding judge is not made in both languages. That has always been the practice in the province of Quebec, and learned counsel for the respondent in this Court, Mr. Gaboury, in answer to a question I put to him, admitted that the practice has also been followed in the Pontiac district. I consider, therefore, that a prisoner who requests a mixed jury is entitled to have the case heard in both languages, and this certainly includes the judge's charge to the jury.
172. Mignault J.'s suggestion that translation is adequate to fulfil the minimum requirements of justice in a mixed trial and counsel's assurance that this was contemporary Quebec practice has further historical support in a statute passed in Lower Canada in 1793, 34 Geo. 3, c. 6, s. 29. C.A. Sheppard, in a study prepared for the Royal Commission on Bilingualism and Biculturalism (see The Law of Languages in Canada (1971)), expands on the practical impact of the legislation on court proceedings at p. 50:
As had been the case under the military and civil regimes, both languages continued to be respected in the courts after the splitting of Quebec into Upper and Lower Canada. In 1793 the Legislative Assembly of Lower Canada passed a statute providing that all previous laws governing the practice of courts of criminal and civil jurisdiction, as well as previous rules of practice, would continue in force unless expressly repealed or varied. The effect of this provision was, of course, to continue those laws which stipulated the use of English and French in certain aspects of judicial proceedings. Provision was made for a French translator for the Court of King's Bench. In 1794, this position was occupied by X. de Lanaudière who received a salary of £200.
173. It is interesting that the effect of the 1793 statute in Lower Canada as described by Sheppard in continuing previous legislation regarding language use in the courts was more explicitly provided for by the legislature of the predominantly English province of Upper Canada. In 1794 an Act, 34 Geo. 3, c. 2, was passed in that province which directly addressed the language of process served on defendants in civil suits. Section IX of the Act provides:
IX. And be it further Enacted by the Authority aforesaid, That upon every copy of such process, to be served upon any defendant, shall be written a notice in the English tongue, to such defendant of the intent and meaning of such service to the effect following:
"A. B. You are served with this process, to the intent that you may, either in person or by your attorney, appear in his Majesty's court of King's Bench, at the return thereof, being the day of in order to [sic] your defence in this action."
And when any party, defendant, is a Canadian subject by treaty, or the son or daughter of such Canadian subject, the like notice shall be written in the French language.
"A. B. Il vous est enjoint et ordonné de comparôitre personellement ou par procureur a la cour du banc du roy a l'expiration de ce writ qui sera le jour pour repondre a cette action."
174. Both the 1785 Ordinance and the 1794 Act were repealed, the former in 1801 by a statute of Lower Canada, 41 Geo. 3, c. 7 and the latter in 1822 by a statute of Upper Canada, 2 Geo. 4, c. 1. The effect of the repeal of the 1785 Ordinance on the validity of summonses became the subject of litigation in 1812 in R. v. Talon, a case reported in the notebooks of the presiding judge and discussed by Nantel in "La langue française au Palais" (1945), 5 R. du B. 201. The case involved a challenge to the court's jurisdiction by Mr. Talon because his summons was issued in French. Reid J.,01 Court of King's Bench, noted at p. 204:
The defendant obtained a rule upon the Solicitor General to show cause why the writ of summons in this cause should not be quashed by reason of its being in the French language.
In support of this rule Mr. Stuart, for the defendant, stated that the Ordinance of 1785 directing the writ of summons to be in the language of the defendant had been repealed by the provincial Stat. 41 Geo. 3, ch. 7 and as the distinction of language in this country has been removed, every writ issuing out of this Court ought to be in English as being the language of the Sovereign.
The Solicitor General contended that notwithstanding the repeal of the Ordinance of 1785, the French language must be received in conducting legal proceedings, it being recognized by the law of the land, and by the practice of the Courts in this Country since the conquest thereof has been in constant use.
By the Court.‑‑The French Language has been used by His Majesty in his communications to His subjects in this province, as well in his executive as in his legislative capacity, and been recognized as the legal means of communication of His canadian subjects. Courts of Justice have at all times used this language in their writs and processes as in their other proceedings, as well before as since the Ordinance of 1785.
It is for the benefit of the subject that this was done, and the defendant cannot be permitted to say that he will not be sued in the language of his country.
(Emphasis added.)
Reid J. appears to be affirming here that the repeal in 1801 of the Ordinance of 1785 requiring that summonses be served in the language of the defendant restored the earlier position that summonses could be served in either language. He rejected the submission that the effect of the repeal was to require summonses to be in the language of the Sovereign, English, pointing out that the Sovereign had used the French language in dealing with his subjects in Quebec. Nantel advances an argument based on international law to the effect that this constituted recognition and continuation of French language rights in the Courts despite the statute of 1801.
175. In 1840 the Act of Union, 1840 (U.K.), 3 & 4 Vict., c. 35, uniting Upper and Lower Canada was passed. The Act made the new legislature unilingual although translation was provided from English into French. There seems to be no reference to language in the courts. Despite designation of English as the official language under the 1840 Act there was clear legislative recognition of the de facto use of both the French and English languages and the need to communicate with speakers of both languages. For this reason we find the following enactment with respect to the laws of the new province, 1841 (Can.), 4 & 5 Vict., c. 11:
An Act to provide for the translation into the French Language of the Laws of this Province, and for other purposes connected therewith.
[18th September, 1841.]
whereas it is just and expedient that the Laws passed by the Legislature of this Province, as well as the Acts of the Imperial Parliament relating to this Province, be translated into the French Language for the information and guidance of a great portion of Her Majesty's subjects in this Province; Be it therefore enacted by the Queen's Most Excellent Majesty, by and with the advice and consent of the Legislative Council and of the Legislative Assembly of the Province of Canada, constituted and assembled by virtue of and under the authority of an Act passed in the Parliament of the United Kingdom of Great Britain and Ireland, and intituled An Act to Re‑unite the Provinces of Upper and Lower Canada, and for the Government of Canada, and it is hereby enacted by the authority of the same, that it shall be lawful for the Governor, or person administering the Government of this Province, to appoint one proper and competent person, versed in legal knowledge and having received a classical French education, and possessing a sufficient knowledge of the English language, to translate into the French language the laws passed by the Legislature of this Province, or by the Imperial Parliament, relating to or affecting this Province.
II. And be it enacted, that the said translation shall be printed under the direction of the Executive Authority, and distributed among the People of this Province speaking the French language, in the same manner in which the English text of the said Laws shall be printed and distributed among those speaking the English language, and under the same provisions.
III. And be it enacted, that the Act of the Imperial Parliament, passed in the Session held in the third and fourth years of Her present Majesty's Reign, and intituled An Act to Re‑unite the Provinces of Upper and Lower Canada, and for the Government of Canada, shall be translated into the French language and distributed as hereinbefore provided with regard to the Laws passed by the Legislature of this Province.
176. Only three years after the Act of Union there was a complete shift from official unilingualism to total bilingualism, 1843 (Can.), 7 Vict., c. 16. Again the concern articulated in the provisions would seem to be to make the justice system meaningful and accessible to all the citizens of the new province. The Act provides:
An Act to repeal certain Acts and Ordinances therein mentioned, and to make better provision for the Administration of Justice in Lower Canada.
[9th December, 1843.]
...
XVIII. And be it enacted, that every writ or process issuing out of any Court of Queen's Bench, (whether in the superior or in the inferior term thereof,) or out of any of the Circuit Courts hereinafter established, shall be in both the English and the French languages, any law, usage or custom to the contrary notwithstanding.
...
LIV. And be it enacted, that in any suit or action to be brought against any person who shall have left his domicile in Lower Canada, or against any person who shall have had no domicile in Lower Canada, but shall have personal or real estate in the same, it shall be lawful for the plaintiff, if no curator be appointed in the ordinary course of law to represent such person, to summon and implead such person, by a writ issued, in the usual way, out of the Court of Queen's Bench, or out of any of the Circuit Courts in and for the District or Circuit wherein such person may have had his domicile, or where such property may be situate; and that upon the return of the Sheriff or of the Bailiff to the writ, that the defendant cannot be found in the said District or Circuit, it shall be lawful for the Court to order that the defendant shall, by an advertisement, to be twice inserted in the English language in any Newspaper published in that language, and twice in the French language in any Newspaper published in that language, in Lower Canada, be notified to appear and answer such suit or action, within two months after the last insertion of such advertisement; and that upon the neglect of the defendant, to appear and answer to such suit or action within the period aforesaid, it shall be lawful for the plaintiff to proceed to trial and judgment as in a case by default.
(Emphasis added.)
And in the same year in 1843 (Can.), 7 Vict., c. 18 we find:
An Act for the establishment of a better Court of Appeals in Lower Canada.
[9th December, 1843.]
whereas the Provincial Court of Appeals now existing in Lower Canada, has been found by experience to be altogether insufficient and inadequate for the due administration of Justice; Be it therefore enacted ...
...
X. And be it enacted, that all Writs and Process to be issued from and out of the said Court of Appeals hereby established, shall run and be in the name and style of Her Majesty, Her Heirs and Successors, and shall be sealed with the seal of the said Court, and shall be tested in the name of that one of the Justices of the said Court present in Lower Canada, who for the time being, shall be entitled to precedence over the other Justices thereof, and shall be signed by the said Clerk or his Deputy, whose duty it shall be to prepare and make out the same; and every such Writ or Process shall be in both the English and the French language[s]; any law, usage or custom to the contrary notwithstanding.
(Emphasis added.)
177. In 1846 this situation was altered by 1846 (Can.), 9 Vict., c. 29, which provided that writs and processes could be in either French or English:
An Act to amend the Law relative to the Administration of Justice in Lower Canada.
[9th June, 1846.]
whereas it is expedient to amend the Acts hereinafter mentioned, and to make further provision as to certain matters relative to the due Administration of Justice in Lower Canada: Be it therefore enacted by the Queen's Most Excellent Majesty, by and with the advice and consent of the Legislative Council and of the Legislative Assembly of the Province of Canada, constituted and assembled by virtue of and under the authority of an Act passed in the Parliament of the United Kingdom of Great Britain and Ireland, intituled, An Act to re‑unite the Provinces of Upper and Lower Canada, and for the Government of Canada, and it is hereby enacted by the authority of the same, That the eighteenth section of the Act passed in the seventh year of Her Majesty's Reign, and intituled, An Act to repeal certain Acts and Ordinances therein mentioned, and to make better provision for the Administration of Justice in Lower Canada, and so much of the tenth section of a certain other Act, passed in the said seventh year of Her Majesty's Reign, and intituled, An Act for the establishment of a better Court of Appeals in Lower Canada, and of any other Act or Law in force in Lower Canada as requires that any Writ or Process issuing out of any of Her Majesty's Courts of Justice therein, should be in both the English and French languages, shall be and the same are hereby repealed, and henceforth any Writ or Process issuing out of any such Court may be either in the English or in the French language; any law, usage or custom to the contrary notwithstanding.
(Emphasis added.)
This situation was continued in 1849 (Can.), 12 Vict., c. 38:
An Act to amend the Laws relative to the Courts of Original Civil Jurisdiction in Lower‑Canada.
[30th May, 1849.]
...
XIX. And be it enacted, That all Writs and Process to be issued out of the Superior Court shall run in the name of Her Majesty, Her Heirs or Successors, and shall be sealed with the Seal of the said Court, and signed by the Prothonotary for the District in which they shall issue, whose duty it shall be to make out and prepare the same; and they shall not be tested in the name of any Judge, but the words "in witness whereof we have caused the Seal of our said Court to be hereunto affixed," shall be instead of such teste: Provided always, that no such Writ or Process shall be deemed void or voidable by reason of its having a wrong seal or no seal thereon; And every such Writ or Process may be either in the English or in the French language, any law, custom or usage to the contrary notwithstanding: and if any affidavit be required before the issuing of any such Writ or Process, the Prothonotary shall have full power to receive such affidavit, and to administer the necessary oath: Provided also, that this shall not be construed to prevent any Judge of the Court from receiving such affidavit and administering such oath if he shall think fit.
(Emphasis added.)
The provisions with respect to publication in both English and French newspapers continued in s. XCIV.
178. In 1851 the legislature directed its attention to the language of jurors and provided in 1851 (Can.), l4 & 15 Vict., c. 89, that parties could consent to unilingual juries or the accused could require at the very least a jury composed of persons half of whom spoke his or her language. If such could not be found, another date had to be set for trial.
An Act to amend the Act intituled, An Act to regulate the summoning of Jurors in Lower Canada.
[30th August, 1851.]
whereas it is expedient to make further and more equitable provision for selecting and summoning Jurors, and for regulating the trial by Jury in civil cases in Lower Canada: Be it therefore enacted by the Queen's Most Excellent Majesty, by and with the advice and consent of the Legislative Council and of the Legislative Assembly of the Province of Canada, constituted and assembled by virtue of and under the authority of an Act passed in the Parliament of the United Kingdom of Great Britain and Ireland and intituled, An Act to re‑unite the Provinces of Upper and Lower Canada, and for the Government of Canada, and it is hereby enacted by the authority of the same, That the seventh section of the Act passed in the session of the Provincial Parliament, held in the tenth and eleventh years of Her Majesty's Reign, chaptered thirteen, and intituled, An Act to regulate the summoning of Jurors in Lower Canada, and so much of the nineteenth section of the same Act as provides that no more than thirty‑six Petit Jurors shall be summoned at any General Quarter Sessions of the Peace, shall be and the same are hereby repealed.
...
juries in criminal cases
...
Fifthly. That except as hereinafter provided, no Sheriff shall be required to return a Special Panel of Petit Jurors for the trial of any criminal case; any law, usage or custom to the contrary notwithstanding.
Sixthly. That unless the prosecuting officer, and the party prosecuted consent that the trial Jury be composed exclusively of persons speaking the English language or of persons speaking the French language, or unless the party prosecuted demand, in the manner and at the time hereinafter provided, a jury composed, for the one‑half, at least, of persons skilled in the language of his defence, (if such language be either the English or the French language,) the said jury shall be composed of the first twelve persons, who, being called from the General Panel shall appear, and shall not be lawfully challenged.
Seventhly. That so much of the Ordinance, passed in the twenty‑seventh year of the Reign of His late Majesty, King George the Third, chaptered one, and intituled, An Ordinance to regulate the proceedings in certain cases, in the Court of King's Bench, and to give the subject the benefit of Appeal from large Fines, as provides that upon any trial by jury in Criminal cases, the defect of the panel in Petit Jurors, skilled in the language of the defence, may be supplied by a tales, shall be, and the same is hereby repealed; and in lieu thereof, Be it enacted‑‑
Eighthly. That whenever any prosecuted party, upon being arraigned, demands a Jury composed for the one‑half at least, of persons skilled in the language of his defence, if such language be either English or French, he shall be tried by a Jury composed, for the one half, at least, of the persons whose names stand first in succession upon the General Panel, and who, on appearing, and not being lawfully challenged, are found in the judgment of the Court to be skilled in the language of the defence.
Ninthly. And whenever from the number of challenges, or from any other cause, there is, in any such case, a deficiency of persons skilled in the language of the defence, the Court shall fix another day for the trial of such case, and the Sheriff shall supply the deficiency by summoning, for the day so fixed, such additional number of jurors skilled in the language of the defence as the Court may order, and as shall be found inscribed next in succession on the list of Petit Jurors.
jury trials in civil suits
...
Seventhly. That upon the unopposed demand of any party to any civil suit or action in which a trial by Jury may now be legally had, it shall be lawful for the Court or any two Judges thereof, to order that the Jurors to be summoned to try the issue or issues in such suit or action, shall be composed exclusively of persons speaking the English language or of persons speaking the French language, and if any such demand be opposed by any other party to any such suit or action, the said Court or Judges shall order that the Jurors to be summoned for such trial shall be composed in equal numbers of persons speaking the English language and of persons speaking the French language; and when a Jury de medietate linguae shall have been so ordered to be summoned, it shall not be lawful for either of the parties to strike from the list of Jurors prepared by the Prothonotary or Clerk, in any such case, the names of more than six persons speaking the English language and of six persons speaking the French language.
...
Eleventhly. That in any civil suit in which the services of a translator shall be necessary, the Court or the presiding Judge shall appoint a person competently skilled in the language to be translated, and shall allow to any such translator a reasonable compensation for his services, and the sum allowed to him shall form part of the costs of trial.
(Emphasis added.)
179. The procedure in the Court of Queen's Bench is set out in C.S.L.C. 1861, c. 77:
An Act respecting the Court of Queen's Bench.
...
28. All writs and process to be issued out of the said court in the exercise of its jurisdiction as a Court of Appeal and Error, shall be distinguished as being so issued, and shall run in the name of Her Majesty, Her Heirs or Successors, and shall be sealed with the seal of the said court, and signed by the clerk thereof or his deputy, whose duty it shall be to make out and prepare the same:
They shall not be tested in the name of any judge, but the words "in witness whereof we have caused the seal of our said court to be hereunto affixed," shall be instead of such teste;
No such writ or process shall be deemed void or voidable by reason of its having a wrong seal or no seal thereon, and every such writ and process may be either in the English or in the French language.
(Emphasis added.)
and in the Superior and Circuit Courts in C.S.L.C. 1861, c. 83:
An Act respecting the ordinary Procedure in the Superior and Circuit Courts.
HER Majesty, by and with the advice and consent of the Legislative Council and Assembly of Canada, enacts as follows:
in the superior court.
Writs and Process.
1. All writs and process to be issued out of the Superior Court shall run in the name of Her Majesty, Her Heirs or Successors, and shall be sealed with the seal of the said court, and signed by the prothonotary for the district in which they issue, whose duty it shall be to make out and prepare the same; and they shall not be tested in the name of any judge, but the words "in witness whereof we have caused the seal of our said court to be hereunto affixed," shall be instead of such teste.
2. No such writ or process shall be deemed void or voidable by reason of its having a wrong seal or no seal thereon; and every such writ or process may be either in the English or in the French language; and if any affidavit be required before the issuing of any such writ or process, the prothonotary may receive such affidavit, and administer the necessary oath; but this shall not be construed to prevent any judge of the court from receiving such affidavit and administering such oath if he thinks fit.
(Emphasis added.)
180. Presumably the legislative concern with language disclosed by the foregoing legislative history is the "continuous practice going back almost to the beginning of the British rule" referred to by this Court in Blaikie No. 2 at p. 330. In 1867, s. 133 of the Constitution Act carried forward the either/may language of the C.S.L.C. 1861, thus putting the historical concern with the status of both languages on a constitutional footing. Although the section does not spell out how the determination as to the appropriate language is to be made, the legislative history seems to me to demonstrate clearly that the focus of concern was meaningful access to the judicial system by users of both languages. The provisions in the early statutes dealing with the adequacy of notice, trial by a jury which could understand the defence, dual publication of writs in French and English language newspapers, the translation of unilingual statutes, the short‑lived flirtation with official bilingualism, the provision for the appointment and payment of translators, and, particularly interesting, the very early provision in 1785 requiring the issuance of a summons in the language of the defendant all indicate that it was the needs of the persons subject to the court's process that was at the core of the various enactments, repeals and re‑enactments. This is hardly surprising. It would appear to go without saying that a judicial system exists to meet the needs of the individual in society and is not an end in itself. Section 133, in my view, recognizes the linguistic duality in the Province of Quebec and assures both French and English speaking citizens that their linguistic rights will be protected by the state in a meaningful fashion.
6. The Content of the Duty
181. The finding of Meyer J. in the Superior Court that the obligation of the state is satisfied so long as either French or English is used fails to take account of the true purpose of the constitutional provision. It illustrates, in my view, how a narrow, literal interpretation of the section can totally defeat that purpose. A literal interpretation would not require the Quebec courts to deal with an English speaker in English and a French speaker in French but, in effect, would permit an English speaking litigant to be dealt with in French and a French speaking litigant to be dealt with in English. This is the antithesis of what was intended. The purpose of the constitutional guarantee was not to ensure that French and English would be the only two languages used in the province's courts and make it constitutionally impossible for a third language to achieve this status; its purpose, rather, would appear to be to put the two languages on an equal footing (see Jones v. Attorney General of New Brunswick, supra, at p. 195) and afford protection to each of the two founding linguistic groups from the intrusion and ultimate dominance of the other: for a contrary view see Bayda C.J. in Mercure v. Attorney General of Saskatchewan, [1986] 2 W.W.R. 1. This purpose is not satisfied by imposing an obligation on the province to deal with an English speaker in either English or French. Indeed, the only type of obligation that can fulfil the purpose underlying s. 133 is one which requires the province's courts to deal with an English speaker in English and a French speaker in French. The words of Lord Wilberforce in Minister of Home Affairs v. Fisher, [1979] 3 All E.R. 21 (P.C.), come forcibly to mind. Constitutional documents, he said at p. 25 "... call for a generous interpretation avoiding what has been called `the austerity of tabulated legalism', suitable to give to individuals the full measure of the fundamental rights and freedoms referred to".
182. It is submitted, however, by the respondent that such an interpretation of s. 133 is foreclosed by Blaikie No. 1 in which the Court held that either language was acceptable. It follows that there can be no obligation on those administering the justice system to utilize bilingual court documents or provide translations of court documents into the other language. Meyer J. clearly accepted that result as flowing from Blaikie No. 1. Commenting on the example posed by Deschênes C.J.S.C.Q. that a Quebec judge, as an individual, has a right to produce his judgment in either French or English, this Court said at p. 1030:
It follows that the guarantee in s. 133 of the use of either French or English "by any person or in any pleading or process in or issuing from ... all or any of the Courts of Quebec" applies to both ordinary Courts and other adjudicative tribunals. Hence, not only is the option to use either language given to any person involved in proceedings before the Courts of Quebec or its other adjudicative tribunals (and this covers both written and oral submissions) but documents emanating from such bodies or issued in their name or under their authority may be in either language, and this option extends to the issuing and publication of judgments or other orders.
183. I take no issue with this Court's conclusion in Blaikie No. 1 that under s. 133 documents, judgments and other materials issued by Quebec courts are valid in either language. It does not, however, follow from this that a French speaking litigant may be dealt with in English and an English speaking litigant in French. The purpose of the provision, it seems to me, goes beyond validating the use of both languages. It validates them for a reason and that reason is that the person before the Court will be dealt with in the language he or she understands. To say otherwise is to make a mockery of the individual's language right. Regardless of whether a judge acting in his or her official capacity retains the right as an individual to write judgments in the language of his or her choice, this cannot, in my view, detract from the state's duty to provide a translation into the language of the litigant.
184. A purposive reading of s. 133 leads, I believe, inevitably to the conclusion that the state's obligation is not satisfied if its courts and their documents speak in either French or English without regard to the language of the litigant. Blaikie No. 1 simply does not address this issue because it did not have to. The issue in that case was whether the provisions of the Quebec Charter of the French Language which made French the official language of the legislature and the courts of Quebec was ultra vires the legislature of Quebec in light of s. 133 of the British North America Act, 1867. The Court held that it was since on the plain meaning of s. 133 both languages were constitutionally entrenched and this could not be changed by unilateral act of the Quebec legislature. At no point, however, did the Court say that the plain meaning of s. 133 permitted a litigant to be dealt with in the courts of Quebec in the official language which he or she did not understand. On the contrary, the Court recognized that the litigant before the Court had the right to use either language, which presumably meant his or her own language. This was reaffirmed in Blaikie No. 2. The present case raises a different but related issue, namely whether or not under s. 133 the litigant must be dealt with in his or her own language and not in the other official language. With all due respect to those who think differently, I cannot read s. 133 as merely permitting the litigant to use the language he or she understands but allowing those dealing with him or her to use the language he or she does not understand. What kind of linguistic protection would that be?
185. It seems to me that at a very minimum, if the citizen X has the right to use his own language in the courts, the state has a correlative obligation not to interfere with his doing so. But if, as an English speaker, X is issued a summons in French, he is not so far being permitted to use his own language (even if he is later allowed to use English in court) for, unless X uses, not English, but French, he will not understand even that he is being summonsed. For that, he has to use French. X is therefore so far at least being interfered with in his right to use English. It is not enough therefore to impose the minimal correlative obligation on the state, a negative duty not to interfere with X's right to use his own language; it is necessary to impose a less minimal or greater correlative obligation on the state, a positive duty to accommodate his right.
186. The respondent, however, advances another argument. He says that s. 133 confers a constitutional right on the Province of Quebec to choose the language in which it wishes to administer its courts. This submission appears to have its roots in the case of Walsh v. City of Montreal, supra, and was adopted by Monnin J.A. (as he then was) in Bilodeau v. Attorney General of Manitoba, [1981] 5 W.W.R. 393 (Man. C.A.) In effect, it proceeds from the premise that the state too is a "person"02 within the meaning of s. 133 of the Constitution Act, 1867 (or, in Bilodeau, the identical provision, s. 23 of the Manitoba Act, 1870). As a "person" the state would have a language right equivalent to that which Blaikie No. 2 held that an individual had under the section. It should be noted that there is a significant conceptual difference between this approach and the approach taken by Meyer J. in the present case. While Meyer J.'s analysis was directed solely to the question of the extent of the obligation which the individual's language right imposes on the state, the basis of Monnin J.A.'s approach in Bilodeau is that "The initiator of the proceedings [i.e. the state] also has linguistic rights and he may initiate them [proceedings] either in English or in French" (p. 409). The respondent takes this proposition one step further and asserts that any official documents and correspondence issued by the province's courts can be in the language of the province's choice and that the province has a linguistic right to be free from the burden of translation. If, in the words of Hugessen A.C.J. in Walsh at p. 299, the state becomes a "person" within the meaning of a section of the constitution conferring rights on all persons, the issue raised by the present case is the extent to which the state has a constitutional language right which cannot be restricted by the individual's language right.
187. With respect, I think the approach taken by Monnin J.A. overlooks a fundamental premise of constitutional law and theory. As Marshall C.J. said in Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), at p. 163, a constitutional system is a "government of laws, and not of men". Accordingly, the constitution limits the powers of government by conferring certain rights on individuals which are then "no longer vulnerable to legislative incursion": per Dickson J. in R. v. Big M Drug Mart Ltd., supra, p. 349. As the Privy Council pointed out in Attorney‑General for Ontario v. Attorney‑General for Canada, [1912] A.C. 571, in the absence of a constitutional limitation the state is unrestricted in its power. The constitution cannot properly be said to confer "rights" on a provincial government since the nature of governmental power is that it is unlimited except as limited by the constitution. Presumably therefore, in the absence of s. 133 the courts of Quebec could be administered in any language in the world. The constitutional right of any individual appearing in such courts to be heard in either English or French effectively restricts the province's power to choose the language in which its judicial proceedings are to be conducted. The proper analytic framework for this case, therefore, is to address the question of the extent to which the individual's constitutional right dictates a correlative constitutional duty on the part of the province and not the question of the extent to which the constitutional "right" of the province is controlled by the constitutional right of the individual.
188. The approach taken by Monnin J.A. in Bilodeau and Hugessen A.C.J. in Walsh seems to me, therefore, to be flawed from the point of view of constitutional theory and cannot form a proper basis for analysing the issue in the present case. While the position taken by Meyer J. in the Superior Court does not suffer from a conceptual flaw of this kind, it does not appear to me to recognize the extent of the state obligation which is correlative to the language right of the litigant under s. 133. Accordingly, although Meyer J.'s decision represents one possible answer to the question of constitutional interpretation raised by this case, it is not, in my view, adequate on the far‑reaching question of what the state must do in order to give practical effect to the appellant's constitutional right. Indeed, it would seem to follow from the nature of the relationship between rights and duties that the scope of the state's obligation should be a precise function of the scope of the respective right of the person and should not, as the outcome of Meyer J.'s decision would suggest, fall so short of that right as to effectively undermine it.
189. As I stated earlier, my initial premise is that the essence of language is communication. Therefore at a minimum a linguistic right brings with it the notion of understanding and being understood. In a society that has, in recognition of its history, extended constitutional protection to two languages in the context of court proceedings, the state cannot usurp the individual's right to be dealt with in the language he or she understands.
190. In my view the initiating documents emanating from the court must as a minimum recognize and accommodate the litigant's right to understand and be understood. The ideal form of compliance with the state's constitutional obligation would obviously be the issuance of bilingual documents. However, it is clear from the legislative history of s. 133 that something less than this has historically been considered adequate and the legislature did not see fit, when it enacted s. 133 and gave constitutional status to the litigant's linguistic right, to require the issuance of bilingual documents. I believe, therefore, that the state's obligation would be discharged by an addendum to the initiating document in the official language not used in the body of the document to put the recipient on notice that this is a directive from the Court commanding his or her appearance before it to respond to a charge and that translation into the other official language should be obtained by application to the appropriate court officials. I think this is consistent both with a purposive, as opposed to a literal, interpretation of s. 133 and with the legislative background from which the section sprang. Nor does it seem too onerous a duty to place upon the state.
7. The Constitutional Question
191. The constitutional question stated for the Court by Ritchie J. reads as follows:
Does a summons which is printed and published in the French language only and commands an English speaking person to appear before the Courts of Quebec offend the provisions of s. 133 of the Constitution Act, 1867, resulting in a total absence of jurisdiction of the Court to proceed against him?
For the reasons given I would answer that such a summons does offend s. 133. It remains to consider whether a violation of the litigant's linguistic right under s. 133 goes to the jurisdiction of the Court.
192. In my view it does. It was clearly established in Blaikie No. 1 that the linguistic rights contained in s. 133 are entrenched rights in the sense that they cannot be diminished by the unilateral action of any of the legislative bodies to which they apply. This entrenched status is now reinforced through the amending procedures in the Constitution Act, 1982. Indeed, it has been suggested that linguistic rights because of the amending procedures are now at the peak of the constitutional pyramid coming ahead of the "fundamental" freedoms set out in s. 2 of the Canadian Charter of Rights and Freedoms. They are in this sense "doubly entrenched": see André Tremblay, "The Language Rights" (Ss. 16 to 23), in Tarnopolsky and Beaudoin (eds.), The Canadian Charter of Rights and Freedoms: Commentary (1982), at pp. 445‑46.
193. Furthermore, although it has not been necessary for the purpose of this case to address the issue raised by the appellant from the point of view of due process, there are evident parallels between what I have articulated as the core value protected by s. 133 and the guarantees of fairness accorded by common law natural justice, s. 2(e) of the Canadian Bill of Rights and s. 7 of the Charter. It could be argued that s. 133, by requiring notice of judicial proceedings in whichever of the two official languages the recipient speaks, provides an extra dimension to the analysis of the adequacy of notice under those various doctrines and instruments. In addition, because of its constitutional stature, s. 133 also reinforces the tendency of the courts to treat breaches of procedural fairness as amounting to jurisdictional error. Lord Reid in Ridge v. Baldwin, [1964] A.C. 40 (H.L.), stated at p. 80:
Time and again in the cases I have cited it has been stated that a decision given without regard to the principles of natural justice is void.... I see no reason to doubt these authorities. The body with the power to decide cannot lawfully proceed to make a decision until it has afforded to the person affected a proper opportunity to state his case.
And in Forsythe v. The Queen, [1980] 2 S.C.R. 268, which dealt with the question whether a Magistrate's refusal to allow defence counsel to cross‑examine a witness amounted to jurisdictional error Laskin C.J.C. stated at pp. 271‑72:
In speaking of lack of jurisdiction, this Court was not referring to lack of initial jurisdiction of a judge or a magistrate to enter upon a preliminary inquiry. This is hardly a likelihood. The concern rather was with the loss of this initial jurisdiction and, in my opinion, the situations in which there can be a loss of jurisdiction in the course of a preliminary inquiry are few indeed. However, jurisdiction will be lost by a magistrate who fails to observe a mandatory provision of the Criminal Code: see Doyle v. The Queen, [1977] 1 S.C.R. 597. Canadian law recognizes that a denial of natural justice goes to jurisdiction: see Alliance des Professeurs catholiques de Montréal v. Labour Relations Board of Quebec, [1953] 2 S.C.R. 140.
Finally, Robins J.A. in Re Potma and The Queen (1983), 2 C.C.C. (3d) 383, discussed the effect of a breach of fundamental justice under s. 7 of the Charter in the following manner at pp. 393‑94:
Secondly, there is the procedural question of whether certiorari and prohibition lie in this case. Eberle J. characterized the impugned ruling as one respecting the admissibility of evidence but not affecting the trial judge's jurisdiction, and accordingly held that relief was not available by way of prerogative writ. Before this court, the Crown did not seek to dispose of the appeal on that basis and concurred in the appellant's submission that the issue of fundamental fairness of process raised by this application, like denial of natural justice, goes to the question of jurisdiction: Forsythe v. The Queen (1980), 53 C.C.C. (2d) 225, 112 D.L.R. (3d) 385, [1980] 2 S.C.R. 268; A.‑G. Que. v. Cohen (1979), 46 C.C.C. (2d) 473, 97 D.L.R. (3d) 193, [1979] 2 S.C.R. 305; Alliance des Professeurs Catholiques de Montreal v. Quebec Labour Relations Board et al. (1953), 107 C.C.C. 183, [1953] 4 D.L.R. 161, [1953] 2 S.C.R. 140; R. v. Norgren (1975), 27 C.C.C. (2d) 488, 31 C.R.N.S. 247, [1976] 3 W.W.R. 196, and Re Martin, Simard and Desjardins and The Queen (1977), 41 C.C.C. 308, 87 D.L.R. (3d) 634, 20 O.R. (2d) 455. In light of that position and, particularly, since the procedure in this case follows the course taken in Duke v. The Queen (1972), 7 C.C.C. (2d) 474, 28 D.L.R. (3d) 129, [1972] S.C.R. 917, I would not give effect to Eberle J.'s conclusion on this point.
The case before this Court likewise raises an issue of fundamental fairness of process in that it deals directly with the language of process in terms of the litigant's ability to understand and be understood. Indeed, the minimum requirement imposed by s. 133 on the courts is not only a reflection of the historical and social background leading up to its enactment in the Constitution Act, 1867 but is also a function of the basic need for fairness in the court's process.
194. In summary, because of the entrenched status of s. 133 rights, the aspect of due process which is contained in my delineation of their content, and the fact that their denial in this instance was inherent in and a result of the very process to which the appellant was subject, I would conclude that any court proceeding in which a litigant is deprived of his or her linguistic rights under s. 133 is a proceeding conducted without jurisdiction. It follows therefore that the Municipal Court of the City of Montréal had no jurisdiction to proceed against the appellant on the basis of the summons.
8. Disposition of the Appeal
195. I would make the following order:
(1) that the appeal be allowed and the judgment of the Court of Appeal of Quebec, pronounced on December 3, 1982, be set aside;
(2) that the judgment of the Superior Court, Criminal Division, pronounced on September 30, 1982, be set aside;
(3) that the judgment of the Municipal Court of the City of Montréal dated March 24, 1982, convicting the appellant of an offence against s. 41A of By‑law 1319 of the City, be set aside;
(4) that the Municipal Court of the City of Montréal be prohibited from proceeding further to hear and determine the charge against the appellant until such time as there has been furnished to him an authentic translation, duly certified by that Court, into the English language, of the summons dated February 25, 1981, or of any amended or substituted summons.
(5) that the constitutional question be answered as follows:
Question: Does a summons which is printed and published in the French language only and commands an English speaking person to appear before the Courts of Quebec offend the provisions of s. 133 of the Constitution Act, 1867, resulting in a total absence of jurisdiction of the Court to proceed against him?
Answer: Yes.
196. I would award the appellant his costs throughout.
Appeal dismissed with costs, Wilson J. dissenting.
Solicitor for the appellant: Walter J. Roustan, Montréal.
Solicitor for the respondent: Neuville Lacroix, Montréal.
Solicitor for the intervener the Société franco‑manitobaine: Joseph Eliot Magnet, Ottawa.
Solicitor for the intervener Alliance Quebec, Alliance for Language Communities in Quebec: Stephen A. Scott, Montréal.
Solicitor for the intervener the Attorney Gen‑ eral of Canada: Roger Tassé, Ottawa.
Solicitors for the intervener the Attorney General of Quebec: Réal‑A. Forest and Lucie Angers, Ste‑Foy.