Bilodeau v. A.G. (Man.), [1986] 1 S.C.R. 449

Roger Joseph Albert Bilodeau Appellant;

and

The Attorney General of Manitoba Respondent;

and

The Attorney General of Canada, the Société franco‑manitobaine and Alliance Quebec, Alliance for Language Communities in Quebec (formerly Positive Action Committee) Interveners.

File No.: 16778.

1984: June 13; 1986: May 1.

Present: Dickson C.J. and Beetz, Estey, McIntyre, Lamer, Wilson and Le Dain JJ.

on appeal from the court of appeal for manitoba

Constitutional law ‑‑ Validity of legislation ‑‑ Manitoba statutes enacted in English only invalid ‑‑ Whether summons issued pursuant to a unilingual statute valid ‑‑ Whether conviction made under a unilingual statute valid ‑‑ Manitoba Act, 1870, R.S.C. 1970, App. II, No. 8, s. 23 ‑‑ The Highway Traffic Act, R.S.M. 1970, c. H60 ‑‑ The Summary Convictions Act, R.S.M. 1970, c. S230.

Constitutional law ‑‑ Language rights ‑‑ French‑speaking person in Manitoba given summons in English only for traffic violation ‑‑ Whether unilingual summonses contravene s. 23 of the Manitoba Act, 1870 ‑‑ Manitoba Act, 1870, R.S.C. 1970, App. II, No. 8, s. 23.

The accused, a French‑speaking person, was charged in Manitoba with speeding contrary to The Highway Traffic Act and received a summons in English only to appear in court pursuant to The Summary Convictions Act. In Provincial Court, the accused made a motion to dismiss the charge on the ground that both Acts were ultra vires the Manitoba legislature since they were printed and published in English only contrary to s. 23 of the Manitoba Act, 1870. The trial judge dismissed the motion and convicted him. The Court of Appeal upheld the conviction.

Held (Wilson J. dissenting): The appeal should be dismissed.

Per Dickson C.J. and Beetz, Estey, McIntyre, Lamer and Le Dain JJ.: The Summary Convictions Act and The Highway Traffic Act, enacted, printed and published only in the English language contravene s. 23 of the Manitoba Act, 1870 and are invalid. This Court has already decided in the Reference re Manitoba Language Rights, [1985] 1 S.C.R. 721, that the requirements of s. 23 are mandatory, not directory, and that Acts of the Manitoba legislature which did not conform to these requirements were, and always have been, invalid.

The effectiveness and the enforceability of the summons, however, cannot be challenged in this case on the grounds that the summons was (1) issued pursuant to an invalid statute and (2) issued in English only. The de facto doctrine, on the one hand, preserves the rights and obligations arising out of the issuance of a summons by a provincial court under colour of the authority of The Summary Convictions Act prior to this Court's decision in the Manitoba Reference. On the other hand, s. 23 of the Manitoba Act, 1870, which is similar to s. 133 of the Constitution Act, 1867, does not require that a summons issued by a Manitoba court be bilingual or printed in the language of choice of its recipient.

The enforceability of appellant's conviction under the invalid Highway Traffic Act is also beyond challenge. Although the de facto doctrine will not preserve a conviction under an invalid statute when a defendant raises the validity of the statute as his defence, the principle of the rule of law will preserve the enforceability of the conviction in accordance with the judgment and order of this Court in the Manitoba Reference.

Per Wilson J. (dissenting): The summons issued in English only violates appellant's linguistic rights under s. 23 of the Manitoba Act, 1870 and is invalid. Just as a person living in the Province of Quebec whose language is English is entitled under s. 133 of the Constitution Act, 1867 to an accommodation of his linguistic rights in the issuance of a French summons, so also is a person who is living in the Province of Manitoba whose language is French entitled under s. 23 of the Manitoba Act, 1870 to a similar accommodation in the issuance of an English summons. A minimal requirement for such accommodation would be an addendum to the English summons alerting the recipient to the importance of the document and advising him where to apply for a translation.

Cases Cited

By the majority

Reference re Manitoba Language Rights, [1985] 1 S.C.R. 721; Re Manitoba Language Rights (Orders), [1985] 2 S.C.R. 347; MacDonald v. City of Montreal, [1986] 1 S.C.R. 460, applied; Attorney General of Manitoba v. Forest, [1979] 2 S.C.R. 1032, referred to.

By the minority

MacDonald v. City of Montreal, [1986] 1 S.C.R. 460; Reference re Manitoba Language Rights, [1985] 1 S.C.R. 721.

Statutes Cited

Constitution Act, 1867, s. 133.

Constitution Act, 1871.

Highway Traffic Act, R.S.M. 1970, c. H60.

Manitoba Act, 1870, R.S.C. 1970, App. II, No. 8, s. 23.

Summary Convictions Act, R.S.M. 1970, c. S230.

APPEAL from a judgment of the Manitoba Court of Appeal, [1981] 5 W.W.R. 393, 61 C.C.C. (2d) 217, 10 Man. R. (2d) 298, upholding the decision of the Provincial Court, [1981] 1 W.W.R. 474, convicting the accused on a charge of speeding contrary to The Highway Traffic Act. Appeal dismissed, Wilson J. dissenting.

Vaughan L. Baird, Q.C., for the appellant.

A. Kerr Twaddle, Q.C., for the respondent.

Pierre Genest, Q.C., Edward R. Sojonky, Q.C., and Peter W. Hogg, Q.C., for the intervener the Attorney General of Canada.

Joseph Eliot Magnet, for the intervener the Société franco‑manitobaine.

Stephen A. Scott and Warren J. Newman, for the intervener Alliance Quebec.

The judgment of Dickson C.J., Beetz, Estey, McIntyre, Lamer and Le Dain JJ. was delivered by

1. The Chief Justice‑‑The Manitoba Court of Appeal upheld the appellant's conviction on a traffic violation. The appellant appeals to this Court on the grounds that the summons for the offence was issued pursuant to a unilingual Act and was printed in the English language only, and that the Act under which he was convicted was unilingual.

I

Facts

2. The appellant accused was charged with speeding contrary to The Highway Traffic Act, R.S.M. 1970, c. H60, and received a summons to appear in court pursuant to The Summary Convictions Act, R.S.M. 1970, c. S230. He moved before Gyles C. Prov. J. for a dismissal of the charge on the ground that The Highway Traffic Act and The Summary Convictions Act were ultra vires the Manitoba Legislature since they were printed and published in only the English language contrary to s. 23 of the Manitoba Act, 1870.

II

Judgments

3. Gyles C. Prov. J. dismissed the motion, [1981] 1 W.W.R. 474, holding that s. 23 of the Manitoba Act, 1870 was ineffectual since the Constitution Act, 1871 which entrenched the Manitoba Act, 1870 did not amend s. 133 of the Constitution Act, 1867. He further concluded that (at p. 480):

Even if the requirement of s. 23 of the Manitoba Act dealing with the printing of the Acts of the legislature in both the English and the French languages were valid, it is my view that it would be directory and not mandatory.

4. The Manitoba Court of Appeal was unanimous in rejecting the Chief Provincial Court Judge's conclusions on the validity of s. 23 of the Manitoba Act, 1870: [1985s <) [1981] 5 W.W.R. 393, 61 C.C.C. (2d) 217, 10 Man. R. (2d) 298. Freedman C.J.M., Monnin and Hall JJ.A. held that the validity of the provision was not in question.

5. The conviction was, however, affirmed unanimously by the Court of Appeal. The majority (Freedman C.J.M. and Hall J.A.) held that the requirements of s. 23 of the Manitoba Act, 1870 were directory rather than mandatory and, therefore, did not render invalid the unilingual Acts of the Manitoba Legislature. Monnin J.A., dissenting in part, found s. 23 of the Manitoba Act, 1870 to be mandatory. However, since out of necessity nothing could be done immediately with respect to those unilingual Acts enacted prior to December 13, 1979 (the date of judgment in Attorney General of Manitoba v. Forest, [1979] 2 S.C.R. 1032), such enactments would not be declared invalid. Consequently, The Highway Traffic Act and The Summary Convictions Act, both enacted prior to December 13, 1979, were valid.

III

The Manitoba Reference

6. The decision of this Court in the Reference re Manitoba Language Rights, [1985] 1 S.C.R. 721, interpreted s. 23 of the Manitoba Act, 1870 as requiring that all Acts of the Manitoba Legislature be enacted, printed, and published in both English and French. This requirement was held to be mandatory and not directory. According to the judgment of this Court, those Acts which did not conform with this requirement were, and always had been, invalid.

7. To ensure that legal chaos did not ensue in Manitoba, the constitutional principle of rule of law was applied for the minimum period required for translation, re‑enactment, printing and publishing of the unilingual Acts of Manitoba. Furthermore, it was pointed out in the judgment that the de facto doctrine, or doctrines such as res judicata and mistake of law, would save many of the rights, obligations, and any other effects which had purportedly arisen under the invalid statutes.

IV

The Enforceability and Effectiveness of a Summons Issued Pursuant to a Unilingual Statute

8. The de facto doctrine is defined in the Reference re Manitoba Language Rights, at pp. 756‑57, as follows:

The application of the de facto doctrine is, however, limited to validating acts which are taken under invalid authority: it does not validate the authority under which the acts took place. In other words, the doctrine does not give effect to unconstitutional laws. It recognizes and gives effect only to the justified expectations of those who have relied upon the acts of those administering the invalid laws and to the existence and efficacy of public and private bodies corporate, though irregularly or illegally organized. Thus, the de facto doctrine will save those rights, obligations and other effects which have arisen out of actions performed pursuant to invalid Acts of the Manitoba Legislature by public and private bodies corporate, courts, judges, persons exercising statutory powers and public officials. Such rights, obligations and other effects are, and will always be, enforceable and unassailable.

9. The summons which the appellant received was issued pursuant to The Summary Convictions Act. This Act was enacted, printed and published in the English language only and is, in accordance with the decision of this Court in the Reference re Manitoba Language Rights, invalid. Nonetheless, the rights, obligations and other effects which have arisen under this Act will be forever enforceable if they arose out of, inter alia, reliance "upon the acts of those administering the invalid laws" under colour of authority. Actions performed pursuant to invalid Acts by courts and judges, acting under colour of authority, will be saved by the de facto doctrine. Thus in the present case, the de facto doctrine will preclude any challenge to the effectiveness or enforceability of the summons on the ground that it was issued pursuant to an invalid Act, since the summons was clearly issued under colour of the authority of The Summary Convictions Act.

V

The Enforceability and Effectiveness of a Summons Issued in English Only

10. In the present case, the summons was issued in English only. It is accordingly necessary to determine if a summons must be in both English and French in order for it to be valid. Section 23 of the Manitoba Act, 1870, in addition to requiring bilingual enactment, printing and publishing of Acts of the Legislature, also provides that:

... 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 the Constitution Act, 1867, or in or from all or any of the Courts of the Province.

The question of whether these words require that a summons be printed in both languages was not argued before this Court though there are several references to it in the appellant's factum. The issue was raised before the Manitoba Court of Appeal which was unanimous in finding that the words did not require bilingual printing of the summons.

11. I am content to follow the majority of this Court in MacDonald v. City of Montreal, [1986] 1 S.C.R. 460, which is being rendered concurrently, in answering the question of whether s. 23 of the Manitoba Act, 1870 requires bilingual printing of the summons. That case involves an interpretation of s. 133 of the Constitution Act, 1867 which was enacted only three years prior to the Manitoba Act, 1870. The text of s. 133 of the Constitution Act, 1867 relating to the issuing of court process is virtually the same as that with which we are concerned in the present appeal. In the MacDonald case, the majority holds that a unilingual summons and charge does not contravene s. 133. The same conclusion applies in respect of s. 23 of the Manitoba Act, 1870.

VI

The Conviction Under The Highway Traffic Act

12. The Highway Traffic Act was not enacted, printed, and published in English and French and it is thereby invalid. The question, then, is whether the provincial court judge had de facto authority to convict under The Highway Traffic Act. In the Reference re Manitoba Language Rights the Court stated at p. 757 that:

... the de facto authority of officials and entities acting under the invalid laws of the Manitoba Legislature will cease on the date of this judgment since all colour of authority ceases on that date.

13. In the present case, the very basis of the appellant's appeal from conviction is the invalidity of the statute under which he is convicted. The invalidity was raised as a defense to the charge, and the holding of the Provincial Court that the statute was valid was appealed to the Manitoba Court of Appeal and then to this Court. I do not believe that a trial judge can be said to be acting under colour of authority when the very ground for the defense is the invalidity of his authority and when his or her decision on this point is appealed. If a person is convicted under a statute which, on appeal from conviction, is deemed invalid, the conviction cannot be saved by invoking de facto authority on the part of the judge.

14. The conviction is, however, saved by the principle of rule of law. One of the manifestations of this principle with respect to the legal situation in Manitoba is stated in the Reference re Manitoba Language Rights, at p. 768:

All rights, obligations and any other effects which have arisen under Acts of the Manitoba Legislature which are purportedly repealed, spent, or would currently be in force were it not for their constitutional defect, and which are not saved by the de facto doctrine, or doctrines such as res judicata and mistake of law, are deemed temporarily to have been, and to continue to be, enforceable and beyond challenge from the date of their creation to the expiry of the minimum period of time necessary for translation, re‑enactment, printing and publishing of these laws.

Thus, the conviction of the appellant under the invalid Highway Traffic Act is enforceable pursuant to this Court's decision and order in the Reference re Manitoba Language Rights.

VII

Conclusion

15. To summarize, The Summary Convictions Act was enacted, printed and published in the English language only. It contravenes s. 23 of the Manitoba Act, 1870 and is therefore invalid. Nevertheless, the de facto doctrine preserves the rights and obligations arising out of the issuance of a summons by a provincial court under colour of authority of The Summary Convictions Act prior to this Court's decision in the Reference re Manitoba Language Rights. The summons in the present case is therefore not subject to challenge on the grounds that the Act was passed in English only.

16. Section 23 of the Manitoba Act, 1870 does not require a summons for a Manitoba court to be bilingual or printed in the language of choice of its recipient. The summons to the appellant is therefore effective and enforceable in all respects.

17. The Highway Traffic Act was also not enacted or published in French. It too is invalid. The de facto doctrine does not preserve a conviction under an invalid statute when the defendant raises the validity of the statute as his defense. However, the principle of rule of law preserves the enforceability of the conviction in accordance with the judgment and order of this Court in the Reference re Manitoba Language Rights.

18. A constitutional question was stated for this Court in the following form:

Are The Summary Convictions Act, R.S.M. 1970, c. S230 and The Highway Traffic Act, R.S.M. 1970, c. H60 ultra vires, invalid, or inoperative by reason of the fact that they were not printed and published in both the English and French languages as required by s. 23 of the Manitoba Act, 1870, 33 Vict., c. 3 (Canada), but in English only?

19. It follows from the Reference re Manitoba Language Rights that the answer is:

Yes, these Acts are invalid, but they will be deemed to be temporarily valid for the period of time prescribed by this Court in its Order, reported at [1985] 2 S.C.R. 347, for their translation, re‑enactment, printing and publication in both languages.

20. The appeal is therefore dismissed.

21. Although the appellant's conviction will stand, it must be acknowledged that he was successful in challenging the constitutional validity of the unilingual statutes. He was also successful in asserting that the requirements of s. 23 were mandatory. The appellant's conviction only stands because of the application by this Court of the rule of law principle to avoid legal chaos in Manitoba, which would have otherwise resulted from the appellant's successful challenge to the legislation of Manitoba enacted since 1890. In the very special circumstances of this case, it is appropriate that the appellant be awarded his costs in this Court and in the Court of Appeal.

The following are the reasons delivered by

22. Wilson J. (dissenting)‑‑I agree with the Chief Justice for the reasons given by him that the summons served on the appellant is not invalid by virtue only of the fact that it was issued pursuant to an invalid statute. However, for the reasons I gave in MacDonald v. City of Montreal, [1986] 1 S.C.R. 460, (released concurrently herewith), I believe it violates the appellant's linguistic rights under s. 23 of the Manitoba Act, 1870 and is invalid for that reason. In my view, just as a person living in the Province of Quebec whose language is English is entitled under s. 133 of the Constitution Act, 1867 to an accommodation of his or her linguistic rights in the issuance of a French summons, so also is a person who is living in the Province of Manitoba whose language is French entitled under s. 23 of the Manitoba Act, 1870 to a similar accommodation in the issuance of an English summons. As I stated in MacDonald the state's obligation can be discharged by an addendum to the summons in the other official language notifying the recipient of the nature and importance of the document and directing him or her to obtain a translation from court officials.

23. Having regard to the position I take on the invalidity of the summons it is not necessary for me to express a view on whether the appellant's conviction is preserved by this Court's decision in Reference re Manitoba Language Rights, [1985] 1 S.C.R. 721, and I do not do so.

24. I agree with the Chief Justice's answer to the constitutional question. I would allow the appeal with costs to the appellant throughout.

Appeal dismissed, Wilson J. dissenting.

Solicitor for the appellant: Vaughan L. Baird, Winnipeg.

Solicitor for the respondent: Gordon E. Pilkey, Winnipeg.

Solicitor for the intervener the Attorney General of Canada: Roger Tassé, Ottawa.

Solicitor for the intervener the Société franco‑manitobaine: Joseph Eliot Magnet, Ottawa.

Solicitor for the intervener Alliance Quebec: Stephen A. Scott, Montréal.