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Published online by Cambridge University Press: 18 July 2014
In 1877, the North-West constitution was amended to provide for the publication of all statutes, or ordinances, in both English and French. In 1905, this provision was carried over into the newly-created provinces of Alberta and Saskatchewan; it was not repealed until 1988, shortly after the Supreme Court's ruling in the Mercure case. At the present time, however, there remains only scant evidence that this constitutional guarantee was ever respected: very few French language ordinances are extant. Were the great majority of the ordinances never printed in French? Or, were they printed in French but then destroyed?
This article examines the Canadian North-West's experience with legislative bilingualism from 1870 until 1895, and the circumstances surrounding its rise and subsequent demise. During the early years of territorial government, when responsibility for the publication of the ordinances was vested in a lieutenant-governor appointed by the Canadian government, perfunctory attention was paid to the language guarantees: the French language ordinances were printed, but with a considerable delay, and then they often went undistributed. After 1894, when authority was transferred to an executive committee directly responsible to the legislative assembly, the language guarantees were completely ignored: the French language printings ceased altogether. Minority rights succumbed to majority rule. The North-West experience provides an abject lesson in the failure of a constitution to protect minority language rights, when faced with determined opposition from an unsympathetic majority-controlled government.
En 1877, une modification à la constitution du Nord-Ouest a disposé que toutes les lois, ou ordonnances, seraient publiées en anglais et en français. En 1905, cette disposition sera reçue dans les provinces de l'Alberta et de la Saskatchewan, nouvellement créées, et elle ne sera abrogée qu'en 1988, à la suite de la décision de la Cour suprême dans l'affaire Mercure. À l'heure actuelle, toutefois, il ne reste que de très maigres indices que le gouvernement a jamais respecté ces garanties constitutionnelles : il n'existe aujourd'hui que très peu d'ordonnances publiées en langue française. Est-ce qu'on a refusé de faire imprimer la grande majorité de ces ordonnances? Au contraire, a-t-on fait imprimer ces ordonnances en français, pour les faire détruire par la suite?
Cet article étudie l'expérience du Nord-Ouest canadien en matière de bilinguisme législatif de 1870 à 1895, et des circonstances qui ont entouré son essor et sa disparition. Pendant les premières années du gouvernement territorial, quand un lieutenant-gouverneur nommé par le gouvernement canadien était chargé de la publication des ordonnances, on n'a accordé une attention aux garanties linguistiques que pour la forme: on imprimait les ordonnances en français, mais cette impression était souvent retardée et, fréquemment, on ne distribuait pas ces ordonnances par la suite. Après 1894, quand un comité exécutif responsable devant l'assemblée législative fut chargé de la publication, on a complètement négligé les garanties linguistiques: on a mis fin à l'impression en langue française. Les droits minoritaires ont succombé au pouvoir de la majorité. Le cas du Nord-Ouest témoigne tristement de l'incapacité d'une constitution à protéger des droits minoritaires en matière de langue, quand elle doit faire face à l'opposition déterminée d'un gouvernement sous le contrôle d'une majorité hostile.
1. Act to amend the North-West Territories Act, 1875, S.C. 1877, c. 7, amending S.C. 1875, C. 49.
2. Creighton, D., “John A. Macdonald, Confederation, and the Canadian West” in Brown, Craig, ed., Minorities, Schools, and Politics (Toronto: University of Toronto Press, 1969) 1 at 8.Google Scholar
3. Mercure v. Attorney General of Saskatchewan, [1988] 1 S.C.R. 234 [hereinafter Mercure].
4. Language Act, S.S. 1988, c. L-6.1; Languages Act, S.A. 1988, c. L-7.5.
5. Mercure, supra note 3 at 255.
6. Sheppard, C.-A., The Law of Languages in Canada (Ottawa: Information Canada, 1971).Google Scholar
7. Ibid. at 83.
8. “The Assembly!” The [Regina] Leader (26 January 1892) 4.
9. Munro, K., “Official Bilingualism in Alberta” (1987) 12 Prairie Forum 37 at 44.Google Scholar
10. Laurie, P. G., Ordonnances des Territoires du Nord-Quest rendues par le Lieutenant-Gouverneur en conseil, durant la Session commencée et tenue à Battleford le dixième jour de Juillet, et terminée le deuxième jour d'Août, 1878 (Battleford: Government of the North-West Territories, 1879).Google Scholar
11. Williams, D. C., “Law and Institutions in the North West Territories: 1869–1905” (1964) 29 Sask. Bar Rev. 83 at 86Google Scholar; Sheppard, supra note 6 at 83; Bastarache, M., “Le Statut du français dans l'Ouest canadien” in Pupier, P. & Woehrling, J., eds., Language and Law (Montreal: Wilson & Lafleur, 1989) 231 at 234Google Scholar; E. A. Aunger, “Language and Law in the Province of Alberta” in Pupier & Woehrling, eds., ibid. 203 at 210.
12. Hayes, K., Catalogue of the North-West Government Library (Regina: North-West Territories Legislative Assembly, 1891) at 64.Google Scholar
13. The first collection was reproduced on eight microfilm reels in 1953 by the Office of the Saskatchewan Archives, University of Saskatchewan, Regina. (This office has since been renamed the Saskatchewan Archives Board.) The second collection was reproduced on one microfilm reel in 1971 by the Glenbow-Alberta Institute, located in Calgary. The third collection was reproduced on 193 microfiches, in 1992, by the Law Library Microform Consortium, University of Hawaii, Windward Campus, Kaneohe, Hawaii.
14. Frank Oliver, M.L.A. from Edmonton, and editor of the Edmonton Bulletin, defended the proposed suppression of the French language provisions by arguing that it would involve no real change: “As the provisions of the clause were allowed to become practically a dead letter its existence was no great injury to the English speaking population of the Territories, who might well have concentrated their attention on matters of greater importance.” See “The Debate” The [Edmonton] Bulletin (8 March 1890) 2.
15. Act to Amend and Continue the Act 32 and 33 Victoria, chapter 3; and to Establish and Provide for the Government of the Province of Manitoba, S.C. 1870, c. 3 [hereinafter Manitoba Act].
16. Act for the Temporary Government of Rupert's Land and the North-Western Territory when United with Canada, S.C. 1869, c. 3 [hereinafter Temporary Government Act].
17. A. G. Archibald, Lieutenant-Governor, Rupert's Land and the North-West Territory, to J. Howe, Secretary of State for the Provinces (22 October 1870) reprinted in Oliver, E. H., ed., The Canadian North-West : Its Early Development and Legislative Records, vol. 2 (Ottawa: Government Printing Bureau, 1915) at 976.Google Scholar
18. This is the format of both the Liquor Law and the Poisons Act. The former was bound with the Manitoba Gazette (18 December 1870), vol. 1; the latter is found in the Saskatchewan Archives Board [S.A.B.] collection “Proclamations, Orders-in-Council and Acts,” file NWT II. Unfortunately, we were unable to locate the original copies of the other legislative acts. Thomas has reported that the Disturbance of the Peace Proclamation was published in English, French and Cree. Unfortunately this proclamation could not be located; it has gone missing from the S.A.B. collection. See Thomas, Lewis H., The Struggle for Responsible Government in the North-West Territories—1870–97, 2d ed. (Toronto: University of Toronto Press, 1978) at 51.Google Scholar
19. This quotation, and subsequent references to the council minutes, are taken from the original minute book “North-West Territories Council Minutes, 1873–1875,” found in the collection of the Saskatchewan Archives Board, Saskatoon, file NWT 1.1. Oliver has conveniently reprinted these minutes, but his source was a copy rather than the original. There are only minor differences. See Oliver, supra note 17, 990.
20. Thomas, supra note 18 at 67.
21. Act to Make Further Provision for the Government of the North-West Territories, S.C. 1871, c. 16.
22. “Copies of all Orders of His Excellency the Governor General of Canada; and of all Laws and Ordinances of the Lieutenant-Governor and Council of the Northwest Territories” in Canada, House of Commons, Sessional Papers, No. 1876–70 (7 March 1876) at 6–11. See also Canada, Chambre des communes, Documents de la session, No. 1876–70 (7 March 1876) at 6–11.
23. Debates of the Senate (21 February 1876) at 39.
24. “Copies of all Instructions to the Honorable A. Morris, Lieutenant-Governor of the North-West Territories; Also Copies of all Orders in Council Relative to the said Territories since their organization, and not Already published; also Copies of all Reports and Official Correspondence Between the Lieutenant-Governor and the Dominion Government from the date of his appointment” in Canada, House of Commons, Sessional Papers, No. 1877–121 (27 March 1877) at 1–78. See also Canada, Chambre des Communes, Documents de la session, No. 1877–121 (27 March 1877) at 1–78.
25. North-West Territories Act, 1875, S.C. 1875, c. 49.
26. House of Commons Debates (8 May 1878) at 2543.
27. Ordinances of the Lieutenant-Govemor and Council of the North-West Territories (Ottawa: Law Printer to the Queen's Most Excellent Majesty, 1877). These were printed and bound with the North-West Territories Act, 1875, S.C. 1875, c.49 and an Act to amend the North-West Territories Act, 1875, S.C. 1877, c.7.
28. Canada, Minister of Justice, “Memorandum with Regard to the Legislation of the North West Territories” in Correspondance, Reports of the Ministers of Justice and Orders in Council upon the Subject of Dominion and Provincial Legislation, 1867–1895 (Ottawa: Government Printing Bureau, 1896) at 1236.Google Scholar
29. This printing was entitled Copy of Ordinances made by His Honor the Lieutenant-Governor and Council of the North-West Territories, on the 22nd March 1877, submitted for the information of the Honorable The Senate and The House of Commons as directed by Section 7, sub-Section 3, of “The North-West Territories Act, 1877” (Ottawa: MacLean, Roger, 1877). It appeared in the sessional papers the following year: “Copy of Ordinances made by His Honour the Lieutenant-Governor and Council of the North-West Territories, on the 22nd March, 1877” in Canada, House of Commons, Sessional Papers, No. 1878–45 (11 March 1878) at 1–48. See also: “Ordonnances de Son Honneur le lieutenant-gouverneur et le Conseil des Territoires du Nord-Ouest, en date du 22 mars 1877” in Canada, Chambre des communes, Documents de la Session, No. 1878–45 (11 mars 1878) at 1–48.
30. “Le Gouvernement du Nord-Ouest” Le Métis (12 April 1877) 2.
31. Debates of the Senate (9 April 1877) at 319.
32. Act to Amend the North-West Territories Act, 1875, supra note 1 at s. 11.
33. North-West Territories Act, 1880, S.C. 1880, c. 25.
34. North-West Territories Act, R.S.C. 1886, c. 50.
35. “Ordinances passed by the Lieutenant-Governor and Council of the North-West Territories, on the 2nd August, 1878” in Canada, House of Commons, Sessional Papers, No. 1879–86 (1 April 1879) at 1–30; “Ordonnances passées par le Lieutenant-Gouverneur et le Conseil des Territoires du Nord-Ouest, le deuxième jour d'août 1878” in Canada, Chambre des communes, Documents de la Session, No. 1879–86 (1 avril 1879) at 1–30.Google Scholar
36. Ordinance respecting Public Printing, O.N.W.T. 1878, No. 2.
37. Williams, supra note 11 at 86, has suggested that the publication of the French version preceded the English version by several years, and this conclusion has been echoed by Sheppard, supra note 7 at 83, Bastarache, supra note 11 at 234, and Aunger, supra note 11 at 210. The confusion stems from the fact that there was a second printing of the English language ordinances in 1884.
38. “Return Showing, by Years, the Cost of Printing the Ordinances and Other Official Papers and Publications in the French language from the Time of the Passage of the North-West Territories Act of 1877” in Canada, House of Commons, Sessional Papers, No. 1890–33 (1890) [hereinafter McCarthy Language Return] at 3.
39. Financial information, including printing and translation costs, as well as the number of copies printed, was calculated from the Appropriation Accounts, supra note 39, and from the Public Accounts, supra note 39. Additional information on the cost of the French language ordinances was found in the McCarthy Language Return, supra note 38. Publication information, including the imprint date and the number of pages, was taken from printed copies of the ordinances. French language copies were found in the Bibliothèque Saint-Jean, University of Alberta (1883), Canadian Parliamentary Library (1881, 1883) and the National Library of Canada (1878, 1879, 1881, 1883). Most were uncatalogued.
40. Canada, Department of Finance, Public Accounts of the Dominion of Canada, 1881 (Ottawa: Maclean, Roger & Co., 1882) at 208.Google Scholar The Public Accounts of the Dominion of Canada [hereinafter Public Accounts] were published annually from 1868 until 1947. Similar information is found in Canada, Office of the Auditor-General, Report of the Auditor-General on Appropriation Accounts (Ottawa: Maclean, Roger, published annually from 1880 until 1973)Google Scholar [hereinafter Appropriation Accounts].
41. “Government of the North-West Territories in Account with Lieutenant-Governor” in North-West Territories, Legislative Council, Journals (1881) App. B at 34.Google Scholar
42. Unfortunately, it is impossible to determine the cost of the first English language printing, and the number of copies printed. The public accounts do not provide sufficient detail. The total amount billed to Laurie for government printing in 1878–1879 was $185.69, and this likely included the cost of the English language ordinances.
43. Ordinance Respecting Trespassing and Stray Animals, O.N.W.T. 1881, No. 6, s. 9(2).
44. Proclamation relating to Electoral Districts and Elections in the North-West Territories, O.N.W.T. 1881, s. 50.
45. Ordinance Providing for the Organization of Schools in the North-West Territories, O.N.W.T. 1884, No. 5 [hereinafter School Ordinance of 1884].
46. Canada, Department of Agriculture, Census of Canada, 1880–81, vol. 1 (Ottawa: Maclean, Roger, 1882) at 300.Google Scholar
47. Canada, Department of Agriculture, Census of the Three Provisional Districts of the North-West Territories, 1884–5 (Ottawa: Maclean, Roger, 1886) at 10–11.Google Scholar
48. E. Dewdney, Lieutenant Governor, to the Minister of the Interior (15 July 1885) in Appropriation Accounts, 1884–85, supra note 40 at 510.
49. For example, in 1889, an opposition member, Mr. Davies (P.E.I.) pointed out that the payments contravened the criminal code: “[T]he hon. member is receiving a benefit from this contract, and I ask that the Minister of Justice should institute proceedings.” House of Commons Debates (11 April 1889) at 1179.
50. Financial information, including printing and translation costs, as well as the number of copies printed, was calculated from the public accounts for the Northwest Territories. See Public Accounts, supra note 40. Publication information, including the imprint date and the number of pages, was taken from printed copies of the ordinances. No French-language copies were located.
51. “The North-West Council” The Regina Leader (8 November 1887) 2. Cayley's interest in the question may be gauged from the fact that he had successfully proposed, ten days earlier, that the council rescind its rule requiring the printing of private bills in English and French.
52. “Return showing number of Ordinances printed in French since 1883” in North-west Territories, Legislative Council, Journals (1887) App. F at 101Google Scholar [hereinafter Turriff Language Return].
53. Appropriation Accounts, 1887–88, supra note 40 at E-98; Appropriation Accounts, 1888–89, supra note 40 at E-165.
54. “Legislative Assembly” The Regina Leader (1 November 1889) 1.
55. McCarthy Language Return, supra note 38 at 3.
56. House of Commons Debates (29 May 1886) at 1657.
57. The lieutenant-governor estimated the cost of translating and printing the 1884, 1885 and 1886 ordinances at $2,000. He then stated: “The sum of three thousand dollars was voted for this purpose at the last session of the Dominion Parliament, and it is hoped that this amount will prove sufficient to cover also cost of translating and printing of the Ordinances of this session.” Turriff Language Return, supra note 50 at 101.
58. School Ordinance of 1884, supra note 45.
59. An Ordinance to amend and consolidate as amended the School Ordinance of 1884, O.N.W.T. 1885, No. 3.
60. “The North-West Council” The Regina Leader (22 November 1887) 2.
61. Ordinance respecting Schools, O.N.W.T. 1887, No. 2.
62. North-West Territories Act, 1880, S.C. 1880, c. 25, s. 11.
63. See, for example E. Dewdney, Lieutenant-Governor, to the Secretary of State (November 1883) and A. Campbell, Minister of Justice, to Governor General in Council (28 November 1883) National Archives of Canada, File RG 15–68722.
64. A. M. Burgess, Deputy Minister of the Interior, to Edgar Dewdney, Lieutenant-Governor of the North-West Territories (2 June 1888), National Archives of Canada, File RG 15–68722.
65. A. E. Forget, Secretary, Lieutenant Governor's Office, to the Deputy Minister of the Interior (8 June 1888) National Archives of Canada, File RG 15–68722.
66. Act to amend the Revised Statutes of Canada, chapter fifty, respecting the North-West Territories, S.C. 1888, c.19.
67. House of Commons Debates (1888) at 1476, quoted in Thomas, supra note 18 at 155.
68. Oliver, ed., supra note 17, vol. 1 at 127.
69. “Lieutenant-Governorship” Saskatchewan Herald (18 September 1881) 2.
70. Thomas, supra note 18 at 160.
71. E. Dewdney, Lieutenant-Governor, to John A. Macdonald, Prime Minister (11 April 1887) quoted in ibid.
72. The Regina Leader (6 November 1888) 4.
73. This information is drawn from “Sketches of the Members” The Regina Leader (30 October 1888) 4–5.
74. Nolin's election was subsequently declared void and he was replaced, the following year, by Charles Boucher.
75. “Estimates for the Fiscal Year ending 30th June 1891” in Canada, House of Commons, Sessional Papers, No. 1890–3A (1890) at 74.
76. “Supplementary Estimates for the Fiscal Year ending 30th June 1891” in Canada, House of Commons, Sessional Papers, No. 1890–3C (1890) at 12.
77. “Return showing the number of Revised Ordinances that have been printed in each, the English and French languages” in North-West Territories, Legislative Assembly, Sessional Papers (20 November 1890), Saskatchewan Archives Board, File Micro R-2.91 [hereinafter Sutherland Language Return].
78. Financial information, including printing and translation costs, as well as the number of copies printed, was calculated from the Public Accounts and the Appropriation Accounts for the North-West Territories, supra note 40. Publication information, including the imprint date and the number of pages, was taken from printed copies of the ordinances. French language copies were found at the Saskatchewan Legislative Library (1888) and the Bibliothèque Saint-Jean, University of Alberta (1888, 1889, 1890).
79. “Dual Language” The Regina Leader (22 October 1889) 4.
80. John R. Hall, Secretary, Department of the Interior, to Robert B. Gordon, Secretary to the Lieutenant-Governor of the North West Territories (29 August 1890) National Archives of Canada, File RG 15–226484 at 564.
81. Robert B. Gordon, Secretary to Lieutenant Governor, to Secretary, Department of the Interior (6 September 1890) National Archives of Canada, File RG 15–226484 at 566–67.
82. That is, the annual series of ordinances had been published in English only. Some individual ordinances had been printed in French. In 1888, for example, the government published extra copies of the 1887 school ordinance: 300 in French and 2,000 in English.
83. Senate Debates (29 April 1890) at 632.
84. Senate Debates (3 September 1891) at 547.
85. The lieutenant-governor, as a conciliatory gesture, had apparently agreed to grant the advisory council responsibility for the appointment of public officials, or so Haultain claimed. John Betts, a newly elected legislator, enquired about the assistant clerk's disappearance on three occasions and, each time, the enquiries were directed to Haultain. “Legislative Assembly” The Regina Leader (20 November 1888) 4; “Legislative Assembly” The Regina Leader (27 November 1888) 4; “Legislative Assembly” The Regina Leader (11 December 1888) 5.
86. “Assembly Notes” The [Edmonton] Bulletin (2 November 1889) 2. The report continued: “Most of the Territorial papers are clamoring for the abolition of the separate schools, and the use of the French as an official language. One significant fact was that the governor's speech was read in English only, while last year it was read in both French and English.”
87. “Legislative Assembly” The Regina Leader (22 October 1889) 1.
88. “Legislative Assembly” The Regina Leader ( 1 November 1889) 1.
89. Ibid.
90. Turriff Language Return, supra note 50.
91. These data include not only the expenditure on annual volumes but also on extra printings such as, for example, the school ordinances and the municipal ordinances. They are calculated from the Public Accounts and the Appropriation Accounts of the North-West Territories, supra note 40.
92. The Regina Leader, supra note 88.
93. House of Commons Debates (22 January 1890) at 51.
94. House of Commons Debates (21 February 1890) at 1017.
95. “Telegraphic” The [Edmonton] Bulletin (22 February 1890) 1.
96. An Act to amend the Acts respecting the North-West Territories, S.C. 1891, c. 22., s. 18 [hereinafter North West Territories Act of 1891]. See also North-West Territories Act, R.S.C. 1886, c. 50, s.llO, as am. by S.C. 1891, c. 22, s.18.
97. Ordinance Respecting the Executive Government of the Territories, O.N.W.T. 1891–92, No. 1, S.1.
98. “N.W. Parliament” The [Regina] Leader (12 January 1892) 1.
99. North-West Territories, Legislative Council, Journals (19 January 1892) at 110.
100. “The Assembly!” The [Regina] Leader (26 January 1892) 4.
101. Ibid.
102. Ibid. at 5.
103. North-West Territories Act of 1891, supra note 96.
104. We have reached this conclusion after searching the proclamations and orders issued by the Lieutenant-Governor: North-West Territories, lieutenant-governor, Minutes and Orders, 1876–1892, Saskatchewan Archives Board, File NWT 1.3; North-West Territories, Lieutenant-Governor, Proclamations and Orders, 1876–1898, Saskatchewan Archives Board, File NWT 1.7.
105. Appropriation Account, 1891–92, supra note 40 at D-165.
106. North-West Territories, Executive Committee, Minutes, 1892–1894, vol. 1, Saskatchewan Archives Board, File NWT 1.6 at 16.
107. Thomas, supra note 18 at 234.
108. Charles Mackintosh, Lieutenant-Governor, to the Minister of the Interior (31 January 1894) transmitting “Dominion Appropriation 1894–5 with Assembly Memorial 1893” Saskatchewan Archives Board, File R 201.1–80.
109. Thomas, supra, note 18 at 237.
110. Minutes, 1892–1894, vol. 3, supra note 106.
111. School Ordinance, O.N.W.T. 1892, No. 22, s. 83.
112. “Report of the Standing Committee on Education concerning complaints of Roman Catholics Against Certain Provisions of the School Ordinances and Regulations” in North-West Territories, Legislative Assembly, Journals (6 September 1894) at 121–23.Google Scholar
113. T. G. Rothwell, acting Deputy Minister, to the Territorial Secretary (12 April 1898) National Archives of Canada, File RG 15–226484 at 424.
114. J. A. Smart, Deputy Minister of the Interior, to R. B. Gordon, Assistant Territorial Secretary (14 April 1898) National Archives of Canada, File RG 15–226484 at 426.
115. R. B. Gordon, Assistant Territorial Secretary, to James A. Smart, Deputy Minister of the Interior (26 April 1898) National Archives of Canada, File RG 15–226484 at 422.
116. In defending the advisory council's struggle to wrest financial control from the lieutenant-governor, Haultain had declared he “did not care whether the position of the old Council was illegal or assumption; they as representatives of the people took hold of it, and they would relinquish it very reluctantly.” The Regina Leader (12 November 1889), quoted in Thomas, supra note 18 at 175.
