Alberta Has No Constitutional Obligation to Publish Its Legislation in French: R v Caron
In 2003, Mr. Caron was issued a traffic ticket for making an illegal left hand turn. Rather than simply paying the fine, Mr. Caron sought to challenge the ticket on the ground that the ticket was issued in English only, and thus violated the province of Alberta’s constitutional obligation to publish its legislation in both English and French. He also argued that the Languages Act, RSA 2000, which allows Alberta to legislate in English only, was ultra vires. Mr. Caron was unsuccessful and the Alberta Court of Appeal found that the province of Alberta has no obligation to print its legislation in French, despite “the rich history of the use of the French language in Alberta” (para 2).
This case has a long judicial history and has resulted in a series of decisions on costs, which have been covered in detail in previous postings on TheCourt. This particular case is worth watching as Mr. Caron and his lawyers plan on seeking leave to the Supreme Court of Canada.
Mr. Caron’s argument was that what is now the province of Alberta agreed to become part of the Canadian Federation on condition that its population would continue to have its rights, including its language rights protected. Furthermore, Mr. Caron also argued that these language rights were entrenched in the Constitution. When Manitoba was created under the Manitoba Act in 1870, the Act explicitly codified the province’s bilingual status. While the Alberta Act of 1905 does not have an analogous clause, it was argued that is because it was not needed. Supposedly, the 1870 Order and Royal Proclamation that assured the province that its language rights would remain in tact upon joining Confederation made this unnecessary.
The Alberta government was able to argue successfully that the 1870 documents on which Mr. Caron relied were not entrenched, and did not achieve the purpose Mr. Caron had alleged. While the silence of the Alberta Act posed a challenge, the province was not found to have a fiduciary duty to its minority French speaking population.
When it comes to the Charter of Rights and Freedoms, the living tree doctrine of constitutional interpretation has become widely accepted in Canada. Though there remains a small number of Canadian academics who favor an originalist approach, the debate in Canada is generally settled. The Supreme Court of Canada has on numerous occasions rejected that, in the context of the Charter, rights are not frozen in time, but are to be interpreted in a broad, liberal manner in order to accommodate a changing society.
To be clear, Mr. Caron did not allege a Charter violation, but it is nevertheless worth considering how the Charter is interpreted as the court in this instance takes the exact opposite approach, utilizing a completely different interpretation strategy for a different part of the Constitution. Justice Slatter notes that the documents must be interpreted in light of what the “Victorian decision makers who drafted the relevant documents” would have assumed and had in mind (para 103).
Thus, Justice Slatter takes a turn towards an intentionality approach, whereby it is the original intention of the drafters that is binding. The more interesting question, arguably, is why have different interpretation methodologies for the same document? In Charter cases, rights such as life and liberty are given broad general interpretations, while in this instance, rights such as “civil rights” and “religious rights” are given a narrow interpretation so that they are not broadened to include language rights.
As this cased turned on a historical inquiry, it is not surprising that the evidence used constituted a large amount of historical evidence. Both history and law can be described as processes of narrative creation. Both involve an examination of the facts and creating a narrative that weaves them together in a coherent fashion. And while the judge’s essential function may appear similar to that of a historian, it is important to note some important differences.
Like the historian, a judge is engaged in the dispassionate search for truth, but is limited to the materials submitted by the parties; he or she cannot seek out independent materials that may be elucidating. Also, while history is subject to interpretation and continued re-interpretation, courts must come to decisions that are final and binding on the parties. Thus a judge’s version of historical facts tends to create a final version of the events in question.
This became a problem in Caron because at times the court appeared to be considering the record and working towards an understanding of the events. Several issues were not open to interpretation as they have been decided in other decisions, and the court was bound by case law on these particular points. This was an obstacle for the appellant, as certain interpretations of historical events were not open to debate.