Language, Rights, Remedies, and the Rule of Law

Abstract

When Georges Forest challenged the validity of Manitoba’s Official Language Act in 1976, he opened up the larger issue of the status of the province’s English-only legislation. The courts had little difficulty in concluding that the Act, which purported to make English the only language used in the courts and legislature of Manitoba, violated s. 23 of the Manitoba Act, 1870. This left open the fate of legislation enacted over the preceding ninety years in breach of the obligation to legislate in both French and English. Prima facie, the natural remedy, in the Canadian constitutional context, would be to declare such unconstitutional legislation invalid and therefore of no force and effect. But this would have left the province with virtually no statutory law. To avoid this result the Manitoba Court of Appeal decided that s. 23 is directory rather than mandatory. This decision was appealed to the Supreme Court of Canada. At about the same time the federal government exercised its power under the Supreme Court Act to refer these remedial issues to the Court for its legal opinion. In Reference Re Language Rights under the Manitoba Act, 1870, the Court disagreed with the Court of Appeal’s classification of s. 23 as merely directory, but was equally troubled by leaving Manitoba without any statute law. Therefore, it declared all Manitoba’s statutes since 1890 to be invalid, but deemed the rights and obligations arising under them to be temporarily in force until the province could reasonably be expected to comply with s. 23. In order to reach this unusual result the Court relied on the doctrine of the rule of law. The constitutional remedies issue posed by this case is probably the most challenging that the Canadian courts have ever faced. The Supreme Court’s approach reveals important underlying presuppositions which go unnoticed in less difficult cases.