Re Official Languages Act: A Comment
In its answers sustaining the validity and effectiveness of both
the federal I and the provincial 2 legislation involved in Re Official
Languages Act,3 a reference by the Lieutenant-Governor-in-Council, 4
the New Brunswick Court of Appeal carefully and properly con-
fined itself to the particular sections which were the subjects of
the reference.
The complex of related legislation, provincial and federal, is
an elegant realization of the omewhat smug admonition that
statutes:
… will have to be carefully framed … to combine Dominion and Federal
legislation so that each within its own sphere [can] in co-operation with
the other achieve the complete power of regulation which is desired. 5
The reciprocal structuring to that end raised a number of
questions besides that of central concern. One related to the con-
stitutional basis of the provincial legislation, rather easily found
in section 92(14) of the British North America Act. Another, based
on Parliament’s inability to delegate to provincial legislatures, 6
yielded to a characterization that rather than delegation there was
only conditional legislation postponing the operative date in crimi-
nal cases until provincial procedure in civil causes corresponded,
an interesting and, it is submitted, sound illustration of the dis-
tinction.7 An alternative claim was that if the federal legislation
‘The Official Languages Act, R.S.C. 1970, c.0-2, s.11(3).
2 The Evidence Act, R.S.N.B. 1952, c.74, s.23C; The Official Languages of New
Brunswick Act, S.N.B. 1969, c.14 s.14.
3 (1972), 5 N.B.R. (2d) 653; (1072), 35 D.L.R. (3d) 372 (N.B. C.A.).
4 The Judicature Act, R.S.N.B. 1952, c.120, s.24A, authorizes references, its
provisions being similar to corresponding Acts of other provinces.
5 The language rearranged in sequence but intact in content is that of Lord
Atkin in A.-G. B.C. v.A.-G. Can., [1937] A.C. 377, 389.
6 See A.G. N.S. v. A.G. Can., [1951] S.C.R. 31; [1950] 4 D.L.R. 369.
7 Provisions giving the authority to determine the effective date for legisla-
tion are a form of delegation of a type I label as “implementing” as distin-
guished from “prescriptive”, other examples of which are instanced and
called “Amendments”
in the Third Report of the Special Committee on
Statutory Instruments, Votes and Proceedings of the House of Commons,
October 22, 1969, 1450-1451. Where, however, instead of being an exercise of
a conferred power, “the action of each legislature is wholly discrete and
independent”, there is a “relation incompatible with delegation”; see A.-G. Ont.
v. Scott, [1956] S.C.R. 137, 142; 1 D.L.R. (2d) 433, 437 per Rand.
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COMMENTS – COMMENTAIRES
was valid, this merely suspended the provincial law by reason of
paramountcy,8 thus necessarily frustrating the operation of the
former since the triggering condition was automatically stultified.
This argument was perfunctorily answered by finding the statutes
not “in conflict”, 9 and would seem equally susceptible to the more
refined complementary test for paramountcy.’
A resolution of these pertinent but subsidiary contentions does
not reach the central issue of Parliament’s substantive competence.
Objectors to the Act on the one hand disputed its coming within
any of the classes of subjects of section 91, and on the other urged
that Parliament was barred by section 133. The invocation of the
latter not just for its own force but indirectly to support a pro-
posed interpretation of one term of section 91 prevents an entirely
separate discussion of these points and will compel some repetition.
The objectors claimed that the enactment of section 133 removed
language use as a subject of legislation by its guarantees of the
status of French and English in Canadian and Quebec legislatures
and courts.” The New Brunswick Court in an entirely orthodox
exercise in statutory construction 2 declined to enlarge this pre-
cisely specified exemption into a general disqualification. The sec-
tion of The Official Languages Act submitted for consideration by
its terms carefully excepted from its operation 13 agencies men-
8 For a discussion of this fundamental principle of Canadian constitutional
law, see Laskin, Canadian Constitutional Law 4th ed. (1973), 23-29.
702 per Bugold,I.A.; 35 D.L.R. (3d) 372, 393, 407.
9 Re Official Languages Act (1972), 5 N.B.R. (2d) 653, 682 per Limerick,I.A.,
10 The distinction between complementing and supplementing provincial
legislation has been examined most notably in connection with penal legisla-
tion, see Laskin, Occupying the Field: Paramountcy in Penal Legislation,
(1963) 41 Can. Bar Rev. 234.
1 30 & 31 Vict., c.3, s.133:
Either the English or the French Languages may be used by any Person
in the Debates of the Houses of the Parliament of Canada and the Houses
of the Legislature of Quebec; and both these 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.
12 It represents an application of a very ancient common law principle
whose earliest development may have been in connection with deeds to land;
cf. Fitzherbert, La Graunde Abridgement, tit. Assise (1577) 316.
13 Section 11(4) provides that “Subsections (1) and (3) do not apply to any
court in which, under and by virtue of section 133 of The British North
America Act, 1867, either of the official languages may be used by any person”.
McGILL LAW JOURNAL
[Vol. 20
tioned in section 133. It would hardly be maintained that under
section 125, another of the rare provisions in the British North
America Act creating an immunity from legislation, owners could
spell out of the exemption of lands or property owned by the
Dominion or a province an incapacity to tax other property.
However, not only legislative power but Parliamentary power
must exist if The Official Languages Act was to be good. It did,
the court held. The challenged provisions of the Act conferred a
conditional option on accused persons to have evidence and trial
in either of the official languages (i.e., French and English) in
“any court in Canada…
in exercising in any proceedings in a
criminal matter any criminal jurisdiction conferred upon it by
or pursuant to an Act of the Parliament of Canada”. 14 Although
unanimous in finding the requisite authority in section 91, the
learned justices differed in their choice of the appropriate head
of power within the section.
For the Chief Justice, section 91(27), specifying “the Procedure
in Criminal Matters” among the classes of subjects of federal
character, was dispositive.15 Limerick,I.A. found it “unnecessary
to justify legislative authority” on that basis, holding the section
“intra vires of Parliament as being for Peace, Order and good
Government”.” Bugold,J.A., like the Chief Justice, sustained the
provisions under 91(27) “insofar as they relate to criminal pro-
ceedings” ‘7 –
all that was before the Court on the reference.
However, he also invoked the general power, 8 apparently in re-
sponse to counsel’s diversionary argument that the Act related
to section 91(1) of the British North America Act (“the amend-
ment.., of the Constitution of Canada”). That suggestion is one
more obfuscation to be disposed of before coming to grips with
the important issue, namely whether to look to section 91(27) or
to the general power.
It was argued that the English language had a constitutional
status, hence any language legislation was a matter coming within
section 91(1). However, “as regards the use of the English or the
French language” under The British North America Act, Parlia-
ment’s general amending authority did not apply. As nothing in
14 Section 11(3).
15 (1972), 5 N.B.R. (2d) 653, 662; (1972), 35 D.L.R. (3d) 372, 379 (N.B. CA.).
10 (1972), 5 N.B.R. (2d) 653, 674-675; (1972), 35 D.L.R. (3d) 372, 386-387 (N.B.
‘7 (1972), 5 N.B.R. (2d) 653, 693-694; (1972), 35 D.L.R. (3d) 372, 400 (N.B. C.A.).
is (1972), 5 N.B.R. (2d) 653, 694-695; (1972), 35 D.L.R. (3d) 372, 401-402 (N.B.
C.A.).
C.A.).
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COMMENTS – COMMENTAIRES
section 133, the only one in that Act dealing with language rights,
was affected, the Court concluded that the exception was irrele-
vant. Thus invocation of section 91(1) proved useless to those
attacking the validity of The Official Languages Act.
The underlying premise that the language had constitutional
status was expressly rejected by a majority of the justices. 9 Their
reading of a succession of English statutes as governing the prac-
tice of particular and notably judicial organs of government rather
than as settling constitutional principles 20 is surely a sound assess-
ment of a system in which, at the very apex, the formulas for Royal
assent to legislation are “le roy le veult” and “soit fait comme il
est ddsirg”.2
The aborted claim involved a frontal attack on the whole
Official Languages Act, and was not limited merely to the section
involved in the reference. Many sections of the Act, such as those
providing for dual language promulgation and publication of federal
official texts,22 for federal bilingual districts 2 and for a Commis-
sioner of Official Languages2 ” are wholly unrelated to criminal
proceedings, and thus would have to rest on grounds other than
section 91(27). The general power might be one such ground but,
it is submitted, since the Act deals with the structure and opera-
tions of federal governmental institutions, section 91(1) might be
more appropriate. 5 The traditional disinclination of courts to use
references as a vehicle for gratuitous holdings 2 would, however,
19 The Chief Justice, having assigned the matter to the class of subjects
“Procedure in Criminal Matters”, had no need to speak to the matter, although
his doing so manifests an implicit rejection of s.91(1) as appropriate, a view
consistent with that of his brethern.
-20See particularly the language of Limerick,J.A., (1972), 5 N.B.R. (2d) 653,
676-677; (1972), 35 D.L.R. (3d) 372, 388-389 (N.B. C.A.).
21 See Anson, Law and Custom of the Constitution 5th ed. (1922), 335-337.
22 Sections 3, 4.
2 Sections 12-18.
24 Sections 19-34.
25 The omission, until s.91(1) was added by The B.N.A. Act, 13 Geo. VI, c.81,
of anything in the classes of subjects listed in s.91 bearing on the organization
of government, aside from s.91(8) on fixing official salaries and allowances,
left Parliament without explicit authority in that connection, e.g., as to re-
cruitment, promotion, and tenure. This may have compelled and justified
recourse to the general power to supply what s.92(1) gave the provincial
legislatures, but the 1949 Act seems to have supplied this deficiency and made
available a specific head of power.
26 See, e.g., A.-G. Ont. v. Reciprocal Insurers, [1924] A.C. 328, [1924] 1 D.L.R.
789;A.-G. Man. v. Manitoba Egg and Poultry Association, [1971] S.C.R. 689, 19
D.L.R. (3d) 169.
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preclude a court from enlarging the scope of the decision on the
reference.
That “[a] law, respecting the use of language in a Court pro-
ceeding is a law respecting procedure” 27 seems so manifestly in
accord with common understanding as to need no confirmation.
But it is confirmed by provincial court decisions 28 and by the
tenor of the United Kingdom statutes treating the matter as “pro-
ceedings” of Courts.29 Hence Hughes,C.J.’s holding that section
11(3), as a “law respecting the use of language” in a criminal trial
context, was a matter coming within “Procedure in Criminal Mat-
ters” seems incontrovertible.
Nor was it controverted. Instead counsel questioned its signifi-
cance for the purposes at hand and unsuccessfully raised the
colourability issue, which in practice seems only to have been used
to condemn statutes dealing with matters coming within classes
of subjects specifically assigned to the other level of government 0
That was not the situation here. Limerick,.A., apparently led astray
by inaccuracies of expression in the argument, misconceived the
position as being whether section 11(3) dealt with something “an-
cillary” to criminal law and procedure, and felt that the general
power dispensed him from the need to inquire into the niceties
of ancillarity. Only a provision which, if enacted independently,
would be ultra vires so that it must depend on association for
survival calls for consideration of ancillarity. Section 11(3) needed
no such help. Since section 91(27) sufficed, reliance on the general
power was unnecessary and moreover, it is submitted, inept.
I for one do not dispute Limerick,I.A.’s pronouncement that
“there is no issue more vital to the unity and therefore to the
peace, good order and government of Canada than the solution
of the language problem existing between the two founding peo-
ples” 1 (which proposition he later weakened by considering the
27R. v. Murphy, Ex parte Belisle and Moreau (1968), 69 D.L.R. (2d) 530,
532 (N.B. C.A.) per Hughes,S.A. (as he then was).
2 8R. v. Murphy, supra, f.n.27; R. v. Watts, Ex parte Poulin (1968), 69 D..R.
(2d) 526 (B.C. S.C.).
20 See, e.g., 4 Geo. II, c.26 and The Welsh Courts Act, 5-6 Geo. VI, c.40.
30 Typical examples are A.-G. Ont. v. Reciprocal Insurers, supra, f.n.26
(Criminal Code amendment enacted along with the Insurance Act colourable
as relating to “property and civil rights”); Reference re Alberta Debt Adjust-
ment Act, [1942] S.C.R. 31, [1942] 1 D.L.R. 1 (provincial statute conditioning
availability of judicial process for debt enforcement colourable as relating to
“interest”, “banks”, and “bankruptcy”).
31 (1972), 5 N.B.R. (2d) 653, 674; (1972), 35 D.L.R. (3d) 372, 386 (N.B. C.A.).
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COMMENTS – COMMENTAIRES
relevance of “local conditions and needs” of which “local authori-
ties are more conscious than federal”32). A case can thus be made
for statutory bilingualism as being a matter “unquestionably of
Canadian interest and importance” of “such dimensions as to
affect the body politic of the Dominion”, which is the criterion
for the general power. ‘A decision on that issue was not required
to dispose of the narrower one raised in the reference.
The use of the French or the English language does not appear
among the listed classes of subjects in either section 91 or 92.
Neither does labour relations; accordingly, the validity of legisla-
tion governing these areas depends on the context of application.34
A similar situation exists in the case of expropriation3 5 and of
insurance regulation.3 Categories of command not constitutionally
specified are shared, their allocation being based primarily on
assignment of the subject matter of the legislation to the appro-
priate listed class under section 91 or 92. This applies to prescrip-
tions of language: with respect to working conditions in a province
they are assigned to the provinces; 37 with respect to criminal pro-
cedure to the federal government.
Carried to an extreme, the attribution of Parliamentary com-
petence to the general power implies a frighteningly wide scope
for federal legislation, going so far as to justify general enact-
ments respecting the language of work, of instruction, etc. by
Parliament. Such a prospect was probably unintended, certainly
imprudent, and clearly-ircompatible–with
the notion that one
looks to general power only when the specifics have failed to
provide an appropriate class of subject, 8 and also with the eco-
nomical principle of looking first to the narrower classes of
subjects. 9
32 (1972), 5 N.B.R. (2d) 653, 680; (1972), 35 D.L.R. (3d) 372, 391 (N.B. CA.).
33A.-G. Ont. v. A.-G. Can., [1896] A.C. 348; see Abel, What Peace, Order and
Good Government?, (1968) 7 Western Ontario L. Rev. 1.
34 Cf. supra, fmn.8, 363.
35 Lajoie, Expropriation et fidralisme au Canada (1972), 105-116.
36 Compare Citizens’ Ins. Co. v. Parsons (1881), 7 A.C. 96 with A.-G. Ont. v.
Wentworth Insurance Co., [1969] S.C.R. 779, 6 D.L.R. (3d) 545.
37 See Abel, “Constitutional-Legal Competence as to Establishment of a
Language of Work in Quebec” in II The Position of the French Language in
Quebec (1972), Gendron Commission Report, 364-370.
38 This approach dates from as far back as Russell v. The Queen (1882),
7 A.C. 829, 836.
39 Cf. Abel, The Neglected Logic of 91 and 92, (1969) U. of T.L.J. 487, 516.
McGILL LAW JOURNAL
[Vol. 20
The tissue of issues made difficult tidy opinion writing in Re
Official Languages Act. The Court is to be commended for its
handling of the tangential contentions and for its holding affirming
the propriety of Parliament’s action. That holding can well rest
on the Chief Justice’s analysis, which is adequate for the matter at
hand and avoids potentially embarrassing commitment on matters
not in issue.
Albert S. Abel*
[Editorial Note]
The decision of the New Brunswick Court of Appeal in Re Official Languages
Act was affirmed by the Supreme Court of Canada on April 2, 1974.
