Reference re Manitoba Language Rights [1992] 1 S.C.R. 212: Language guarantees -- Instruments of legislative nature

Present: Lamer C.J. and La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin, Stevenson and Iacobucci JJ.

SPECIAL HEARING ON MANITOBA LANGUAGE RIGHTS

Constitutional law -- Language guarantees -- Scope of s. 23 of Manitoba Act, 1870 -- Instruments of legislative nature -- Whether s. 23 applicable to certain types of orders in council and to documents incorporated by reference in legislation -- Whether orders in council fall within phrase "Records and Journals" of legislature in s. 23 -- Criteria for determining legislative nature -- Extension of time period for compliance with s. 23 -- Period of temporary validity extended -- Retroactivity -- Manitoba Act, 1870, S.C. 1870, c. 3, s. 23.

Following the judgment of this Court in Reference re Manitoba Language Rights, [1985] 1 S.C.R. 721, a dispute arose among the parties concerned as to which instruments had to be translated, re-enacted, printed and published, pursuant to s. 23 of the Manitoba Act, 1870, in order to comply with the judgment. To solve the dispute, this Court agreed to hear new questions put forward by the parties to determine whether certain types of orders in council and documents incorporated by reference in the "Acts of the Legislature" fell within the scope of s. 23.

Held: Section 23 of the Manitoba Act, 1870 applies to orders in council which are of a legislative nature and, under certain conditions, to documents incorporated by reference in the legislation.

(1) Orders in Council

The requirements of s. 23 of the Manitoba Act, 1870 apply to orders in council which are determined to be of "a legislative nature". To make this determination, the form, content and effect of the instrument in question must be considered. The criteria indicative of a legislative nature do not operate cumulatively. An instrument may be determined to be legislative in form, though not in content, and under the criteria it would nonetheless be determined to be of a legislative nature. With respect to form, sufficient connection between the legislature and the instrument is indicative of a legislative nature. This connection is established where the instrument is, pursuant to legislation, enacted by the government, or made subject to the approval of the government. With respect to content and effect, the following are indicative of a legislative nature: the instrument embodies a rule of conduct; the instrument has the force of law; and the instrument applies to an undetermined number of persons.

Orders in council as a category do not fall within the phrase "Records and Journals" of the House in s. 23 of the Manitoba Act, 1870. The scope of that phrase must be limited to those documents which are actually tabled in the Legislative Assembly.

(2) Documents Incorporated by Reference in Legislation
The requirements of s. 23 also apply to documents incorporated by reference in Acts of the Manitoba Legislature if the following conditions are met: (a) the primary instrument in which the document is incorporated is "a legislative instrument"; (b) the incorporation is a true incorporation in that the document is an integral part of the primary instrument as if reproduced therein; and (c) the document was generated by the Government of Manitoba. Where a document is created by the legislature or the executive or where the document requires ministerial or legislative approval to give it life, the connection between the government and the document is sufficiently strong to conclude that the document is generated by the government itself. Even where the document is generated by an outside source -- for example, another government or a non-governmental body -- it will still attract s. 23 obligations unless it can be shown that there was a bona fide purpose behind its incorporation without translation.

(3) Extension of Time Period for Compliance

The period of temporary validity of Acts of the Manitoba Legislature which would currently be in force were it not for their constitutional defect will be extended for a period of time to be determined by agreement between the parties. The period of temporary validity is hereby extended for three months from the date this judgment is handed down. The parties must reach an agreement with respect to the further extension of the time period within those three months, or apply to this Court for a determination of the issue.

(4) Retroactivity

Instruments enacted unilingually by the Government of Manitoba between the handing down of Reference re Manitoba Language Rights and the handing down of this judgment, now deemed to fall within the scope of s. 23, will be rendered valid retroactively provided that compliance with s. 23 is achieved within the time period outlined above. The period of temporary validity will not, however, apply to any unilingual Acts of the Legislature enacted after the date of this judgment.

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