1974]
COMMENTS – COMMENTAIRES
Re Official Languages Act: A Comment
On all constitutional I points, the Supreme Court 2 has sustained
the decision of the New Brunswick Supreme Court, Appeal Division,.
upholding that province’s Official Languages Act 4 and the juris-
diction of Parliament to enact s.11(1),(3) and (4) of the federal
Official Languages Act.5
Writing for a unanimous Court, Laskin,C.J. took a view similar
to that expressed by Hughes,C.J.N.B. and Bugold,J.A.: 6 that section
92(14) of the British North America Act, 1867 authorized the provin-
cial legislation, that section 91(27) “provided adequate support”
for the immediately relevant provisions of the federal Act and
that section 133 created no “implicit constitutional limitation” on
federal or provincial legislative power.
Besides noting and applauding the definitive rejection of the
appellant’s challenge, this sequel to an earlier comment 7 on the
New Brunswick decision will examine the possible implications of
some of the statements contained in the Supreme Court judgment.
Particularly noteworthy was the Court’s historical orientation
in interpreting section 133. In referring to the Quebec Resolutions
for guidance in determining whether section 133 is limitative, the
Court has recognized the legal relevance of historical documents
anticipatory of Confederation. One hopes that this signals the
casting off of the traditional blindfold in relation to these docu-
ments.8 a
Also with regard to section 133, the Court stated:
1 On a matter of statutory construction, the Supreme Court concluded,
contrary to the majority in the New Brunswick court, that the legislation was
operative without needing a special proclamation.
2 Re Official Languages Act, [1974] 7 N.B.R. (2d) 526.
3 (1972) 5 N.B.R. 653, 53 D.L.R. (3d) 372 (N.B.CA.).
4 Official Languages of New Brunswick Act, S.N.B. 1969, c.14, s.14. Also at-
tacked (and its applicability upheld) was Evidence Act, R.S.N.B. 1952, c.74,
s23C.
5 Official Languages Act, R.S.C. 1970, c.0-2, s.11(1), (3), (4).
6 Limerick,J.A. concurred in the result for separate reasons.
7See comment at (1974) 20 McGill LJ. 136.
8 Supra, fm.2, 538.
8 Cf. A.-G. Ont. v. Winner, [1954] A.C. 541, [1954] 4 D.L.R. 657, 13 W.W.R.
(n.s.) 657.
McGILL LAW JOURNAL
[Vol. 20
Certainly what s.133 itself gives may not be diminished by the Parliament
of Canada, but if its provisions are respected there is nothing in it or in
any other parts of the British North America Act … that precludes the
conferring of additional rights or privileges or the imposing of additional
obligations respecting the use of English and French, if done in relation
to matters coming within the competence of the enacting legislature.9
This general proposition could have ramifications beyond the imme-
diate context. In particular it has a bearing on measures regarding
the language of work and of instruction, which are currently under
consideration.’ 0
The Court then turned its attention to the effect of section
91(1), which confers jurisdiction upon Parliament to make laws in
relation to “the amendment from time to time of the Constitution
of Canada” except, inter alia, “as regards use of the English or
French language”. While declining “to state exhaustively what is
comprehended within the phrase in s.91(1)
‘the constitution of
Canada’ “,11 Laskin,C.J. nevertheless found “untenable” the con-
tention that “would turn the exception from a grant of a new power
under s.91 (1) into a general substantive limitation unrelated to that
power”. 2 Presumably this would be true not only for the language
exception but also for the others included in that subsection. This
could mean that the inclusion of specific exceptions in section 91(1)
may not be interpreted as a restraint on legislative powers conferred
elsewhere in the Act.
The specific issue before the Court involved language use in
criminal proceedings. Laskin,C.J., like Hughes,C.J.N.B. and differing
from Limerick,J.A., found that section 91(27) was dispositive of the
matter. He did, however, like Limerick,J.A., consider the consequen-
ces of the “peace, order and good government” clause of section 91.
He said of these words:
… in relying on them as constitutional support for the Official Languages
Act, I do so on the basis of the purely residual power thereby conferred.
No authority need be cited for the exclusive power of the Parliament of
Canada to legislate in relation to the operation and administration of the
institutions and agencies of the Parliament and Government of Canada.
Those institutions and agencies are clearly beyond provincial reach.’3
OSupra, f.n2, 537. Emphasis supplied.
10 Cf. Official Language Act, Bill 22, 2d Sess., 30th Leg., Que. Nat. Ass. 1974
(assented to 31 July 1974).
“Supra, f.n.2, 540.
12 Ibid.
13 Ibid., 534.
19741
COMMENTS – COMMENTAIRES
This interpretation of the “peace, order and good government”
clause rendered valid as within parliamentary competence not only
sections 11(1),(3) and (4), independently validated by section 91(27),
but also the rest of the Official Languages Act. While this may appear
to be obiter dicta, it is a dictum which may be expected to discourage
challenge to other portions of the Act.
How far the Court will in future opinions expand upon these
statements is a matter of speculation. Not in question, however, is
the constitutionality of the associated federal and provincial pro-
visions for using either official language in criminal causes.
Albert S. Abel *
* Professor, Faculty of Law, University of Toronto.
