Alberta Appeal Court Upholds English-only Ticket

A decade-long legal saga that begun when a 54-year old Franco-Albertan trucker was issued an English-only traffic ticket for making an unsafe left turn may wind up before the nation’s highest court, after the Alberta Court of Appeal recently held that the province does not need to print and publish its laws in both English and French.

In a ruling that delves into complex constitutional issues, explores the origins of linguistic rights in Western Canada, and provides a fascinating glimpse into Canada’s rich history, the appeal court found that language rights in Alberta have not been entrenched in any constitutional documents.

“The fact that there is no constitutional document entrenching language rights in Alberta, whereas other constitutional documents (BNA Act, 1867, s.133; Manitoba Act, 1870, s. 23; Charter of Rights, s. 16) clearly do so for other jurisdictions, is an insurmountable obstacle for the appellants,” said Justice Frans Slatter who wrote his own reasons even though he agreed with the majority in R. v. Caron [2014] A.J. No. 173.

The lengthy case began in 2003 after Gilles Caron was issued a ticket in English for a minor traffic violation. Caron wanted his ticket and subsequent hearing in French but was denied under Alberta’s 1988 Languages Act, which revoked French language rights in the province. In Alberta, current laws allow for French trials in criminal cases, but not in civil cases. By that time, Edmonton businessman Pierre Boutet, also charged with a traffic violation, joined the case to fight his English-only speeding ticket.

In July 2008, following an 89-day trial that heard the testimony of eight expert witnesses and included 93 exhibits and over 8,000 documents, Provincial Court Judge Leo Wenden acquitted Caron and  Boutet of infractions under the Traffic Safety Act after finding that the provisions under which they were charged were inoperative because they were not printed and published in French as well as English. After reviewing in “great detail” the language rights that existed, Judge Wenden held that  legislative bilingualism had been established in what was known as Rupert’s Land and the North-Western Territory as early as 1845. But that ruling was appealed, and in 2009 a Court of King's Bench judge found that historical documents and orders did not enshrine language rights in what is now Alberta. The appeal court agreed.

“The historical constitutional documents do not contain an express right to have legislation published in English and French,” noted Teresa Haykowsky, part of a team at McLennan Ross in Edmonton, who successfully pleaded the case. “The history is only a backdrop. It is fascinating, rich and marvellous but the history cannot be a basis to find a constitutional right. It is the constitutional documents that are the source of a right, if any.”

Roger Lepage, Caron’s lawyer, hopes to convince the Supreme Court of Canada that there is a constitutional basis for language rights in Western Canada. He maintains that prior to the transfer of Rupert’s Land and the North-West Territory to Canada, the inhabitants, nearly half of whom were French-speaking, enjoyed official bilingualism under the Hudson’s Bay Company’s control. He further argues that language rights were included in negotiations that followed Louis Riel’s Metis rebellion.  Lepage points out that in 1867, the Government of Canada was interested in annexing the land which is now Saskatchewan, Alberta, Manitoba and the territories. The Canadian government sent two addresses to the British Parliament, guaranteeing the area’s inhabitants civil and religious rights, including language rights. In 1869, the British Parliament issued a Royal Proclamation, which later included four bills of rights, all of which guaranteed bilingual rights. Moreover in 1871, the Constitution Act spelled out how the Canadian government could form new provinces, and it too guaranteed language rights.

“What we argued in Caron is that there is a constitutional basis to language rights, based on three constitutional documents, two addresses, and the Royal Proclamation,” said Lepage, a partner with Miller Thomson in Regina. “We also argued that the fourth source of constitutional rights was the BNA Act of 1871, which constitutionalized the governments of Manitoba and North-West Territories.”

However, the Alberta Court of Appeal held that the absence of explicit language of entrenchment of language rights in any constitutional document relating to what is now Alberta is an “insurmountable barrier to the appellant’s claim.” The appeal court points out that at around the same time, in 1870, Parliament clearly entrenched language rights and codified the legal right to legislative bilingualism in Manitoba when it created the province under the Manitoba Act, 1870.

“Entrenched constitutional rights should primarily be found in written, formal constitutional documents,” said Justice Slatter. “The appellants argue that the right to use French is an unalterable right at the heart of Confederation, yet that right is nowhere to be found in the Alberta Act, although it is expressly mentioned in other constitutional documents like the Manitoba Act, 1870 and the British North America Act, 1867. It is a fundamental weakness of the appellant’s argument that they cannot point to any constitutional document which expressly entrenches the right to use French in Alberta.”

Justice Slatter added that the Supreme Court of Canada already dealt with the issue in R. v. Mercure [1988] S.C.J. No. 11. “The fundamental issue in Mercure was whether the right to use French was entrenched in Alberta, which is exactly the same issue as is now presented,” said Justice Slatter. In Mercure, the Supreme Court ruled that when Saskatchewan and Alberta became provinces they were still governed by section 110 of the North-West Territories Act, which upheld bilingualism from when it was a part of Rupert’s Land and the North-West Territories. However, the Supreme Court also held that these requirements were not entrenched in the Constitution and the provinces could pass their own language laws, which they did 25 years ago.

Sébastien Grammond, the dean, civil section at the University of Ottawa, contends that Caron should not be governed by the SCC Mercure ruling. “The arguments that were raised in this case were never presented in Mercure or any other case,” said Grammond, who was part of the legal team who unsuccessfully pleaded the case for Boutet. “The Mercure case dealt with laws adopted in 1905 that created Alberta and Saskatchewan. The Caron case dealt with another time, other laws and other constitutional laws.”

Constitutional law professor Pierre Foucher believes it would be useful to have the Supreme Court examine the issues raised by Caron, “as much for the francophone community as for Alberta itself and  for the Constitution.” Besides narrowly interpreting the SCC Mercure ruling, Foucher contends that the Alberta Court of Appeal did not deal with the constitutional status of the Royal Proclamation nor the implicit guarantees included in the Royal Proclamation.

“In aboriginal rights, there is the Royal Proclamation of 1763 and the Supreme Court has said it gives a substantive right to aboriginal people in Canada,” said Foucher. “So there are precedents but it is not clear whether the rights in the Royal Proclamation are guaranteed or that the Royal Proclamation has a constitutional status. This precise issue has never been clarified by the Supreme Court.”

Lepage also is hopeful that the Supreme Court will hear the case, if only because the Caron case marks the first time it will deal with the constitutional basis to language rights in western Canada. “We quickly forget the source of tensions and unless we deal with them and recognize those promises, that is what causes dissension to occur,” said Lepage, who argued the Mercure case along with former Supreme Court Justice Michel Bastarache. “There is no political will but that is when the courts are called upon to make sure that our constitutional provisions are recognized and respected. That’s why we are appealing to the Supreme Court.”

But David Risling, who was part of the McLennan Ross team that successfully argued the case for the Alberta government, believes they will have a daunting challenge.

“The Alberta Court of Appeal has said that the fathers of our constitution really did understand how to put it together so if you are trying to assert a constitutional right that is not in the face of those documents it is going to be difficult to argue something that exists that is not there.”