Section 18 – Parliamentary and New Brunswick Statutes and Records

Provision

Parliamentary statutes and records

18.(1) The statutes, records and journals of Parliament shall be printed and published in English and French and both language versions are equally authoritative.

New Brunswick statutes and records

(2) The statutes, records and journals of the legislature of New Brunswick shall be printed and published in English and French and both language versions are equally authoritative.

Similar Provisions

Almost identical constitutional provisions apply to the legislatures of Quebec and Manitoba under section 133 of the Constitution Act, 1867 and section 23 of the Manitoba Act, 1870 respectively. See also sections 5, 6 and 7 of the Official Languages Act (1988).

Purpose

The purpose of section 23 of the Manitoba Act, 1870 and section 133 of the Constitution Act, 1867, is to ensure full and equal access to the legislatures, laws and courts to Anglophones and Francophones alike (Manitoba Language Rights 1985 at para. 31). As subsection 18(1) of the Charter is to the same effect, it shares the same purpose.

In May, paras. 59-60, the Alberta Provincial Court Judge, J.N. LeGrandeur, indicated that section 18 of the Constitution Act, 1982, provides that both French and English versions of federal and New Brunswick legislation are equally authoritative. This principle of equal authenticity was first formulated in 1981 by the Supreme Court of Canada in Canadian Pacific Railway v. Robinson (1891), 19 S.C.R. 292 (S.C.C.), in which Tashereau J. Stated at page 325:

I take it that whether the article was first written in English or in French is immaterial. [...] In the case of ambiguity, where there is any possibility to reconcile the two, one must be interpreted by the other. The English version cannot be read out of the law, Art.2615 C.C. It was submitted to the legislature, enacted and sanctioned simultaneously with the French one, and is law just as much as the French one is.

Analysis

A) The scope of the right

1) The scope of the word “statutes”

Subsection 18(1) of the Charter applies equally to the whole process of enactment of legislation in Parliament, from the introduction of the bill to third reading and Royal assent.

Reflecting the interpretation provided by the courts, subsection 18(1) of the Charter restates the duty set out in section 133 of the Constitution Act, 1867: the archives, reports and journals of Parliament must be written in English and French and the statutes printed and published in both languages. Subsection 18(1) of the Charter also applies to the making or the keeping of the journals (such as order paper, notices, votes, proceedings, etc.) and other records of what was done in the Houses of Parliament.

The teaching of Blaikie No. 1 in 1979 as confirmed by the Supreme Court in Manitoba Language Rights 1985 (Reference re Manitoba Language Rights, at paras. 124, 125, 127 and 128, is threefold:

In Blaikie No. 2, at p. 320, the Supreme Court of Canada extended the scope of its previous decision by stating that the requirements set out in section 133 of the Constitution Act, 1867, apply to documents of a legislative nature adopted by the government, by one or several ministers or with their consent.

2) Subordinate legislation:  “documents of a legislative nature”

Subsection 18(1) of the Charter also applies to subordinate legislation (for example, regulations and orders of a legislative nature) made by the government or subject to its approval before it can come into force, and to the rules of practice of the courts. It does not apply to regulations and by-laws of municipal or school bodies (Manitoba Language Rights 1985; Blaikie No. 2, at pp. 322-325).

Without attempting to establish a completely watertight test, the Supreme Court of Canada indicated in Manitoba Language Rights 1992, at pp. 213 and 233, that orders in council must be made in both languages if they are legislative instruments in terms of their form, content and effect. However, the Court indicated that these criteria do not operate cumulatively. It could be determined that an instrument is legislative in form though not in content, and under the following criteria it would nonetheless be determined to be of a legislative nature.

As far as the form is concerned, a sufficient connection between the legislature and the instrument will show that it is legislative in nature. This link will be established when the instrument is, pursuant to legislation, enacted by the Government or where it is made subject to government approval.

As far as content and effect are concerned, the following elements indicate that an instrument is legislative in nature: it must be a rule which sets norms or standards of conduct; must be unilateral and have binding legal effect; and must be of general application rather than directed at specific individuals or situations. While recognizing that there would be grey areas when the application of these criteria may provide difficult, the Court emphasized that it would be “wise for legislatures, in cases of doubt, to resolve that doubt in favour of the constitutional right” (Manitoba Language Rights 1992, at p. 225).

Orders in council authorizing a Minister or a Crown corporation to enter into a contract generally would not be caught by the constitutional requirements but the situation may be different where the contract is entered into pursuant to statute, essentially as a substitute for enacting a regulation.

Orders in council authorizing grants to municipalities or affecting the rights or responsibilities of one or more specific persons are not subject to section 23 of the Manitoba Act, 1870.

Also exempt from this rule are specific appointments of persons within the Public Service and Crown corporations as well as appointments of judges and members of quasi-judicial tribunals.

However, the type of order in council that authorized the establishment of the Commission of Inquiry into the Administration of Native Justice in Manitoba created broad-ranging powers that “clearly determined some of the rights and responsibilities of the Manitoban public”. An order of that kind is subject to the requirements of section 23 of the Manitoba Act, 1870.

Contracts and schedules that may be attached to orders in council will rarely be subject to section 23 of the Manitoba Act, 1870 since the instruments to which they are attached are not subject to it in most cases (Manitoba Language Rights 1992, at pp. 226-227).

In Sinclair, at page 588, which was heard at the same time as the special hearing in Reference re Manitoba Language Rights, the Supreme Court of Canada held that orders in council, letters patent and other instruments made under an act of Quebec for the purpose of merging the cities of Rouyn and Noranda were subject to the requirements of section 133 of the Constitution Act, 1867. If the net effect of a series of discrete acts has a legislative character, then each of the components will be imbued with that character. All the instruments in question were part “of a process which, when viewed in its entirety, was undoubtedly legislative”. The Court concluded that it was not possible to circumvent the requirements of section 133 by the disingenuous division of the legislative process into a series of discrete steps and then claiming that each of these steps, when examined in isolation, lacks a legislative character. 

All federal orders in council have been made in English and French since the mid-1970s.

3) Documents incorporated by reference

The purpose of these constitutional and quasi-constitutional provisions is to guarantee francophones and anglophones full and equal access to the laws of Canada and to protect official language minority communities. It is because of the dual nature of this purpose (equality and protection of language communities) that the requirements of the constitutional and quasi-constitutional provisions can, in certain circumstances, be applied to a document that is incorporated by reference in a legislative text. In short, the purpose of this rule is to prevent a drafting technique from being used to circumvent language requirements or from having that effect. However, the application of these requirements to material incorporated by reference is somewhat complex (Manitoba Language Rights 1992, at p. 229; Beaulac, (R. v. Beaulac, at para. 25).

In Manitoba Language Rights 1992, at p. 228, the Supreme Court held firstly that material that is truly incorporated in a law (whether a statute or a regulation), rather than merely referenced, forms an integral part of the law as if reproduced in it. The Court went on to state that unless there is a bona fide reason for incorporation without translation, the material is subject to the constitutional language requirements (Collier, at p. 562). The Supreme Court stated that in order to determine whether a bona fide reason for incorporation without translation exists, “the origin of the document and the purpose of its incorporation must be examined”.

With respect to the origin of the document, there is a distinction between documents that are generated by the same legislature or the same level of government (internal material) and documents generated by another organization (external material). In order to determine whether material is internally generated, the connection between the government and a given instrument should be analyzed. If the connection is sufficiently strong, then the material is to be considered as having been generated by the government itself. This would be the case, for example, if material is created by the body (legislature or executive) that makes the incorporating law or if the material requires ministerial or legislative approval to give it life. 

In the case of material generated by the regulation-making authority, it will be very difficult to justify incorporating it in one language. As the Supreme Court stated it will be “a rare occasion when a legislature can justify the incorporation of a document effectively generated by itself without translation" (Manitoba Language Rights 1992, at p. 229). Accordingly, this material will almost always have to exist in both official languages when the incorporating regulation is made. Its incorporation in only one language will rarely be justified because it will be assumed to be an attempt to skirt the language requirements of the Constitution (or of the Charter or the OLA). In the case of material originating from sources other than the law-making body (external material), the issue is more complex.

The Supreme Court in Manitoba Language Rights 1992, at p. 231, gave some examples of instances in which incorporation without translation would “likely” be bona fide. For example, the incorporation of the legislation of another jurisdiction that existed in only one official language could be justified to allow inter-governmental cooperation on specific issues: reciprocal enforcement of orders made under the family law statutes of different jurisdictions. Another example mentioned was reliance on technical expertise of non-governmental bodies, which will usually constitute a bona fide reason. In cases such as these, translation could be impracticable if the material is frequently revised by those bodies. Requiring that a translation of such texts be prepared would defeat the purpose of incorporation by reference. Also finally, in some situations translation would not guarantee accessibility to materials that, because of their technical nature, are for all practical purposes inaccessible to the majority of citizens.

In its 2019 decision Motard v. Canada, the Court of Appeal of Quebec confirmed the decision rendered by the Quebec Superior Court in 2016. The appealant filed an application for leave to appeal with the Supreme Court of Canada, and the application was dismissed on April 23, 2020. This case deals with the legality of the Succession to the Throne Act, 2013, which gives assent to the alteration in the law touching the Succession to the Throne set out in the bill laid before the Parliament of the United Kingdom and entitled A Bill to Make succession to the Crown not depend on gender; to make provision about Royal Marriages; and for connexted purposes (the British law). The Court of Appeal was tasked with determining, amongst other things, whether the Throne Act contravenes section 133 of the Constitution Act, 1867 and subsection 18(1) of the Constitution Act, 1982. The Court of Appeal confirmed that the British law was not incorporated into canadian law (it was therefore not incorporated by reference). As for the Throne Act, it was passed simultaneously in English and French, in accordance with section 133 of the Constitution Act, 1867, and subsection 18(1) of the Constitution Act, 1982. In addition, the Court of Appeal pointed out that a French version of the British bill, created by the Minister of Justice Canada for informational purposes, had been tabled in the House of Commons during the introduction of the Canadian bill.

In fact, to be bona fide, the benefits of the unilingual incorporation must outweigh the ensuing encroachment on the principle of equality of access to the laws and on the objective of preserving and developing official language communities in Canada. Thus, incorporation of unilingual texts that are frequently revised, lengthy and highly technical will be more easily justified.

It is important to note however that the use of incorporation by reference to create almost all of any particular regulatory requirements (so-called “wholesale” incorporation) could contravene the principle of the bona fide reason. According to the Supreme Court, “if a legislature incorporated wholesale the legislation of another jurisdiction which it could just as easily enact for itself, the action would clearly not meet the bona fide test” (Manitoba Language Rights 1992, at pp. 229-230). Finally, it should be noted that if the incorporated document does not meet the constitutional language requirements, the provision incorporating it will be of no force or effect.

The weight to be given to these factors in each circumstance may vary when balancing the different considerations.

4) Scope of the expression “statutes of the legislature” at subsection 18(2)

Does the expression “statutes of the legislature” used in subsection 18(2) of the Charter include municipal by-laws?  By interpreting subsection 18(2) purposively and in a manner consistent with the preservation and development of official language communities, the Court of Appeal of New Brunswick concludes that it is necessary to extend the meaning of the term “statutes” used in subsection 18(2) to include municipal by-laws. In its view, any other interpretation would frustrate the remedial purposes of this language right and be inconsistent with a liberal, dynamic and purposive construction of this right (Moncton, at paras. 95, 96 and 110).

The 2001 Moncton decision pre-dated the 2002 enactment of the Official Languages Act and, most significantly, was a challenge to the unilingual by-laws of the City of Moncton pursuant to sections 16(2) and 18(2) of the Charter. There is no Charter challenge of the Official Languages Act, which dictates the practice of the Town of Riverview concerning issuance of by-laws (Riverview at para. 33).

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