LEGISLATING LANGUAGE USE IN Al.BERTA 463

LEGISLATINGLANGUAGE USE IN : A CENTURY OF INCIDENTAL PROVISIONS FOR A FUNDAMENTALMA TIER

EDMUND A. AUNGER• language law deals with a matter of fundamental Le droit linguislique a trait a une matiere importance,and language rights haw been widely d 'importancefondamentule,et /es drollslingu1stiques recognized as f11ndamentalhuman rights. Yet very• sont generalement reconnus comme des droits Iii/le is known about Alberta's legislatil'eprovisions f ondamentaux. Po11rtant, en ce qui concerne for language use. This article examines those /'Alberta, Jesdispositions legislatll·es en matierede provisionsthat have had the greatest impactover the languesont largementignorees. Cet article etudie/es past century and places them in their historical dispositionsqui ont e11le plus grand impactdepuis un context.It alsopresents a comprehensiveoverview of siecle el /es situe dans leur contexte historique. II the many unheraldedprovisions and organizesthem presenteegalement un survol elend11des nombreuses according to their thematic significance. D11ring disposllions lnconn11eset /e,f organise selon leur AIberra 's early decades these languageprovisions importancetliematiq11e. Au cours de ses premieres commonly Imposed English and repressed minority de,·enniesI 'Albertaa adoptrJdes dispositionsqui ont languages.In more recentyears they havepromoted ImposeI 'angla/.fet reprlme/es lung11esminoritaires. a greater tolerancefor Frenchand other languages. Pl11srecemment, toutefoi.f, ces dispositions font preuve d'une plus grande tolerancepour la /ang11e franfaise el pour d'aulres langues.

TABLE OF CONTENTS

I. INTRODUCTION ...... • • • . • . • • . • . • ...... • . • . • . • • . . . . . 464 II. HISTORICAL ANALYSIS OFTHE PRINCIPAL LANGUAGE PROVISIONS .•... 468 A. SECTION I 100FTHENORTH-WESTTERRITOR1£SACT, 1905-1988 . • . • . . . . • . • . • • • • • • • . . . • ...... • • • • . • ...... 468 B. THE SCHOOL ACT, 1905 TO PRESENT • . • . . . . • . • • . • . • . • ...... 4 73 C. SECTION 27 OFTHE INTERPRETATION ACT, 19 I 9-1980 .•....•.... 479 D. THELANGUAGESACT, 1988TOPRESENT •.•.••••••...... • 482 Ill. THEMATIC OVERVIEW OF INCIDENTAL LANGUAGE PROVISIONS .•.••••• 484 A. THE OFFICIAL LANGUAGES OF ALBERTA ...... •.•.•.•..•..... 484 B. FUNDAMENTAL LANGUAGE RIGHTS ...•.•.•..•...... •.•. 485 C. THE LANGUAGE OFTHE LEGISLATURE AND THE COURTS .•....•.• 485 D. THE LANGUAGE OF THE CIVIL ADMINISTRATION .•.•.•.•...... • 488 E. THE LANGUAGE OF SEMI-PUBLIC AGENCIES • . • • . • . • . • ...... • 490 F. THE LANGUAGE OF LABOUR RELATIONS •.•..•...... •.•.•.•.• 492 G. THE LANGUAGE OF COMMERCE AND BUSINESS .•.•.•.•.•...... 493 H. THE LANGUAGE OF INSTRUCTION .•.••.•.•....•...•.••.•.•. 496 IV. CONCLUSION . . . • . • . . . . • . • . • . • • • . • • • . • . • ...... • . • • . • . • . 497

Professor of Political Science, Faculte Saint-Jean, . The author gratefully acknowledgesthe researchassistance provided by KatharineMcDonough who, in 1992,diligently sifted through several hundred statutes in search oflegislative provisionsrelevanl 10 language use. 464 ALBERTALAW REVIEW (2004) 42:2

I. INTRODUCTION

Legislativeprovisions that relate to language use deal with a matter of fundamental importance.As the SupremeCourt of in 1988declared in Fordv. Quebec (A.G.), "[l]anguage is not merely a means or medium of expression; it colours the content and meaningof expression.It is a means by which a people may express its cultural identity.It is also the meansby whichone expressesone's personalidentity and senseofindividuality." 1 In support,the Court cited the internationally-renownedsociolinguist, Joshua Fishman:

IL)anguage is not merelya meansof interpersonalcommunication and influence.It is not merelya carrierof content,whether latent or manifest.Language itself is content,a referencefor loyaltiesand animosities,an indicatorof social statuses and personalrelationships, a marker of situationsand topics as well as of the societalgoals and the large-scalevalue-laden arenas of interactionthat typifyeveiy speechcommunity. 2

For this reason, the SupremeCourt has treated languagerights as fundamentalhuman rights. In the Manitoba language Rights Reference, it offered a now classic affinnation:

The impor1anceof languagerights is groundedin the essentialrole that languageplays in human existence, developmentand dignity.It is throughlanguage that we are able to formconcepts; to structureand order the worldaround us. Languagebridges the gap betweenisolation and community,allowing humans to delineate the rightsand duties they hold in respectof one another,and thus to live in society.3

Fundamental importance notwithstanding,relatively little is known about Alberta's legislativeprovisions for languageuse. Claude-Armand Sheppard, writing in 1965,described Canadianlanguage law as a "relativelyunexplored field" and his own pioneeringstudy, The Law of languages in Canada, as "no more than a preliminarysurvey of an extremely complex and important field of law."4 Alberta fared particularly poorly, rating only occasionalparagraphs on a dozen pages scatteredthroughout his 414-pagetext. 5 Sheppard cited six statutes,containing eight languageprovisions,6 all located in the Revised Statutes of Alberta 1955: the City Act;' the Coal Mines Regulation Act;8 the Companies Act;9 the Interpretation Act;10 the Municipal Districts Act; 11 and the School Act. 12 After examining each of these, he concludedthat "the only languagewhich enjoys official status in Alberta is English."13

Ford v. Quebec (A.G.), (1988) 2 S.C.R. 712 at 748-49. Joshua A. Fishman,The Sociologyof Language:An InterdisciplinarySocial Approacl, to Language in Societ}'(Rowley, Massachusetts: Newbuiy House Publishers, 1972)at 4. ReferenceRe ManitobaLanguage Rights, [I98S] I S.C.R. 721 at 744. Claude-ArmandSheppard, n.eLaw of Languagesin Canada(: Information Canada, 1971)at xviii. Ibid. at 87-91, 170,242, 2SI, 2S3-S4,260. 297-98. lhrd. al 298. R.S.A. 1955,c. 42, s. 96( I). R.S.A. I 9S5, c. 47, ss. 72(c), 73(b). R.S.A. 1955,c. S3, s. 130(3). '" R.S.A. I 9SS, c. 160, s. 40. II R.S.A. 1955,c. 21S, s. 85. ,,ll R.S.A. 19SS,c. 297, ss. 38S, 386(1). Sheppard,supra note 4 at 298. LEGISLATINGLANGUAGE USE IN ALBERTA 465

Since that time, numerousworks have appearedon Canadaand selectedprovinces, 14 but few have shed much further light on Alberta. In one, a province-by-provincestudy of legislative provisions for minority-languageeducation, Pierre Foucher evaluated each province in the light of constitutionalguarantees recently entrenched in s. 23 of the Constitution Act, /982. 15 He foresightedlyjudged the AlbertaSchool Act unconstitutional because of its failure to provide for French-languageminority schools. 16 In another work, enticinglyentitled "Official Bilingualism in Alberta,"but limitedlargely to pre-1905events, historianKenneth Munro confirmedthat "the study of the questionof languagein Alberta had largelybeen neglected."17 In 1989,Edmund Aunger published an historicaloverview of provincial language law, but focused mainly on the legislature,courts and schools.18 This study raised more questionsthan it answered.

The failure to examine Alberta's language law more extensively may be due to a widespreadsuspicion that there is nothingmuch to be studied.Sheppard himself posited that a legislature'spower to regulate languageuse might, in some instances,be exercisedonly occasionally."It will tend to be unnecessaryin linguisticallyhomogeneous jurisdictions or in areas where,by customor practice,a single languageis used."19 At firstglance this would seem to apply directly to Alberta. Accordingto the 200 I census the English language is overwhelminglydominant: 82 percentclaim English as their mothertongue, 96 percentspeak English in their home and 99 percent are able to converse in English.Nevertheless, such homogeneitymay be a new phenomenon.In 1916,for example,only 67 percentof Albertans spoke Englishas their mothertongue. 20

Provincial ideologymight also work against the adoptionof such legislation.Alberta's political leaders have been frequent and vocal opponents of government interventionin various social and economicquestions, includinglanguage matters, arguing that it would unjustlyrestrain personal liberty and individualchoice. 21 In 1992, for example,Alberta's

" For Canada, see generally Rejean M. Patry, la legislation linguistiquefederate (Quebec: Editeur official du Quebec, 1981): M. Bastarache,ed .• Les droits linguistiques011 Canada (Montreal:Yvon Blais, 1986), publishedin Englishas l.a11g11ageRights in Ca11ada (Montreal: Yvon Blais. I 989): Joseph E. Magnet,Official /.a11g11age.rof Canada (Montreal:Yvon Blais. 1995):C. MichaelMacMillan. The Practice of /,a11guagcRig/11.f m Canada (:Uni,·crsity of Toronto Press, 1998). For \'arious provinces,see also Jean-ClaudeGemar, les troisetatsde la politiq11eling11isliq11c d11 Quebec (Quebec: Editcur official du Quebec. 1983);Gerard Snow. I.es droits lmg11istiq11esdes Acadiens d11No111·ea11 Brunswick (Quebec:Editeur officiel du Quebec, 1981);J.L. Gilles LeVasseur, le stat111J11ridiq11edu franfais en Ontario (Ottawa:Presses de l'Universited'Ottawa. 1993);Jacqueline Blay./. 'Article:!3. I.es peripeties /egis/atiw.r et juridiques d11faitfranfais 011.\lanitoha. /870-1986 (Saint-Boniface. Manitoba: Editionsdu Ble, 1987). ll Pierre Foucher,Constilllfional l.anguage Rights of Official-language Minoritiesi11 Canada (Ottawa: Canadian Law lnfonnationCouncil. 1985);Constitution Act. /98:!. being ScheduleR to the Ca11ada Act /982 (U.K.). 1982.c. 11. ,,. Foucher.ibid. at 271-72. " Kenneth Munro,"Official Bilingualismin Alberta"(1987) 12:1 Prairie Fornm37 11137 ,. EdmundA. Aunger,"Language and Law in the Provinceof Alberta"in P Pupicr& J Wochrhng.eds . ,., languagt• and Lall' (Montreal:Wilson & Lafleur. 19891203. Supra note 4 at IOI. Canada.Census and StatisticsOffice, Census of Prairie Pro1•inces:Popu/ar,on and Agriculture. I 'J16 (Ottawa: Printerto the King. 1918)at 250. :, C.B. Macpherson,in his classicstudy of Alberta's politicalsystem first publishedin 1953.wa$ among the first to draw attention to the province's radical individualism.ol\en manili:stcdin a profound oppositionto governmentintervention and bureaucraticregulation. See C.B. Macpherson,Democrtlly 466 ALBERTA LAW REVIEW (2004) 42:2

Premier, , called for the repeal of federal language provisions, asserting that "bilingualismshould be removedfrom the force oflaw. This would be a fundamentalchange in Canada. Bilingualismby choice not by law."22 Four days later a publishedpoll revealed that 63 percent of the Alberta population supported Getty's proposal that "bilingualism should not be an official policy with the force of governmentbehind it."23 As , Alberta's Minister of Culture and Multiculturalism,explained, "Albertans, and many Canadians,don't like being told what to do."24

The incidentalor ancillarynature of languagein Canadianconstitutional law providesan additionaldisincentive to study Alberta's languageprovisions. Language is not listed among the various legislative powers attributed by the Constitution Act, 1867 to the Canadian Parliamentor to the provincial legislatures.2s It is incidentalto these powers.As Peter Hogg explains,"for constitutionalpurposes language is ancillaryto the purposefor which it is used, and a language law is for constitutional purposes a law in relation to the institutions or activities to which the law applies.''.26 In practical terms this means that languageprovisions have nearly always been buried in statutes dealing with other matters. Further, since these provisions are rarely indexed, researchers have, until recently, faced the daunting task of manuallysifting throughthousands oflegislative acts. (Between 1906and 1990,for example, the Alberta legislatureadopted some 7,380 statutes.)

Fortunately, in 2001, the Alberta Heritage Digitization Project (AHDP) effectively removedthis obstacle when it providedon-line access to retrospectiveAlberta statutes from 1906to 1990,and to Alberta bills from 1950to 1990.27 This database reveals that, contrary to popular perception, the provincial government has legislated extensively on language questions. Between 1906 and 1980, for example, 112 statutes, or in other words, almost 2 percent of those adopted, made incidental provision for language use.28 Some contained generic provisions applicable to any language, including 33 that condemned the use of insulting, profane, blasphemous,offensive, abusive, indecent or obscene language - an interestingcommentary on contemporarysocial concerns. However, 62 statutes,or I percent, regulated the use of a specified language, most commonlyEnglish but sometimes French. Typically, the legislators recognized the English language for use in provincial elections,

i11,llberta: The Theorya11d Practice of a Quasi-party:;;;-stem (Toronto: University of TorontoPress, 1953). For more recent workson this Iheme,see Trevor Harrison& Gordon Laxer,eds., The Troju11 Horse: Alhena a11dthe F11t11reofCa11ada (Montreal: Black Rose:Books, 1995)and Mark Lisac, The Klei11Revo/11tion (: NeWest Press, 1995). For a specific commentaryon the relevanceof Alberta's neo-liberalismto languagelaw, see EdmundA Aunger,"De Illrepression a la tolerance:les contrarietes du neoliberalisme linguistiquc en Alberta" in J..J>. Wallot, ed., la go11vema11ce li11g11istiq11e:le Ca11ada e11 perspective (Ottawa: Centre de recherche en civilisation canadienne· fran~aise,forthcoming). ll "Excerpts fromPremier's Speechon the Constitution"71,e Edmo11to11 Joumul (IO January 1992)A 7. l\ "Getty's remarksharmful-poll'' The EdmontonJo11mt1l ( 18 January 1992)A3. "Doug Muin lights for his Premier"The Edmon1011Jo11mal (26 January 1992)DI. Co11stit11lio11Act, /867 (U.K.).30 & 31 Vici.,c. 3, ss. 91, 92, reprintedin R.S.C. 1985,App. 11,No. 5. Peter W. Hogg,Co11stit11tio11uf law of Ca11ada,2d ed. (Toronto:Carswell, 1985)ot 805. ll "RetrospectiveLaw Collection," online: Our Future,Our Past:The Alberta Heritage Digitization Project <\\Ww.ourfutureourpast.ca/law/>. We counted only those statutes that containedeither the word "language"or a direct referenceto a specific language,such as "English"or "French."We did not count the numerousindirect references to language,implied in such wordsas "read." "write:· ··speak."'"publish" or "interpret." LEGISLATINGLANGUAGE USE IN ALBERTA 467 professional services, municipal government, public records, judicial process, school instruction,industrial relations or consumerand corporateaffairs. Their goal was oftento ban minoritylanguages, rather than to protect free speech or guaranteeindividual choice.

In recent years the provincial legislature has intervened even more extensively.The Revised Statutes of Alberta 2000 include34 statutesthat provide for languageuse, or about 8 percentof the total. (When subordinatelegislation is consideredthis number increasesto 61 statutes,or 14percent.) Again, many provisions are genericbut in contrastto earliertimes they are likelyto protectindividual rights in any language,rather than to imposeprohibitions - only four statutes now regulateabusive or obscene language.There are also 19 statutes (or more than 4 percent)that containprovisions referring to a specific language.Although these still favour English,many also provide for the use of two or more languages.Current language provisions relate, for example, to the naming of business corporations, the appointmentof interpretersat polling places, the proficiencyof health professionals,the records of municipal councils, the languagesof school instruction,the selection of jury panels,the examinationof witnessesand the provingof wills. Further,there is now a statute, the languages Act, that providesexclusively for languageuse, specificallyin the provincial legislatureand courts.29

This article will examine Alberta's record in legislatinglanguage use and situate it in historical and thematic context. First it will study, in detail, the province's most important languageprovisions, which are found at varioustimes in four differentstatutes: the North­ West Territories Act, the School Act, the Interpretation Act and the languages Act. The first two were not originallyenacted by the provinciallegislature but were carried over from the North-WestTerritories. The provincialconstitution, the Alberta Act, provided in 1905that "[a]ll laws and all orders and regulations"in vigour at that date in the Territories, would continuein the new province of Alberta until such time as the provinciallegislature (or the federal Parliament,as appropriate)decided otherwise.30 The CanadianMinister of Justice, CharlesFitzpatrick, explained that ''we are perpetuatingthe rights, whateverthey may be, in the North-WestTerritories with respectto language,leaving it to the legislatureto determine hereafterto what extent these rights may be maintained."11

Second,this articlewill presenta thematicoverview of the province's languageprovisions, modeledon a modem provincialcharter, Quebec's Charter of the French language. 32 In this overview, the major themes will be official languages, fundamental language rights, the language of the legislature and the courts, the language of the civil administration,the languageof semi-publicagencies, the languageoflabour relations,the languageof commerce and businessand the languageof instruction.Although no direct comparisonsare made, it is evident that Alberta's disparate and little-knownlanguage legislation, like Quebec's

1•, Language.rAct, R.S.A. 2000, c. L-6. \ti Alberta Act, S.C. 1905, c. 3, s. 16, reprinted in R.S.C. 1970, App II. No. 19. One of the new government'sfirst priorities,then, was to consolidatethe existinglaws. See Alberta,Department of the AttorneyGeneral, The Ordinances of the North-WestTerritories. Being an officialconsolidation of the Ordinancesof the North-WestTerritories inforce on August 31st, /905 (Edmonton:J.E. Richards, 1907). /louse of CommonsDebates (30 June 1905)at 8634. R.S.Q., c. C-11. 468 ALBERTA LAW REVIEW (2004) 42:2 codified and well publicized languagecharter, has been strikinglycomprehensive and far. reaching.

II. HISTORICAL ANALYSIS OF THE PRINCIPAL LANGUAGE PROVISIONS

A. SECTION 110 OF THE NORTH-WEST TERRITORIESACT, 1905-1988

In 1905 s. I IO of the Nor1h-Wes1Terrilories Ac/, as amended in 1891, continued to operate in the newlycreated provinceof Alberta. It therebyestablished English and French as the official languagesof Alberta's legislatureand courts:

Either the English or the French language may be used by any person in the debates of the Legislative Assemblyof the Territoriesand in the proceedingsbefore the courts;and both those languagesshall be used in the recordsand journals of such Assembly;and all ordinancesmade underthis Act shall be printed in both those languages:Provided, however, that after the next general electionof the l.cgisl11tivcAssembly, such Assembly may, by ordinance or otherwise, regulate its proceedings,and the manner of recording and publishingthe same; and the regul11tionsso made shall be embodiedin a proclam11tionwhich shall be forthwith madeand publishedby the LieutenantGovernor in conformitywith the law,and thereaftershall have full force and effect.33

The CanadianParliament had originallyadopted the first part of this provisionin 1877at a time when French-speakersmade up some three-quarters of the North-West's non­ indigenouspopulation. 34 Less than a decade later,however, the Frenchhad been reducedto a small minorityby the flood of English-speakingimmigrants from Ontario.Consequently, in 1889,the North-WestAssembly-now entirelyEnglish-resolved to petitionthe federal governmentfor abolitionof the "dual language"provision. Parliament refused this petition but, in 1891,as a minor concession,added a new clause to s. 110,permitting the Assembly to determinethe languageof its proceedings.This the Assemblydid on 19January 1892by adopting a resolutionmoved by the head of the executivecommittee, Frederick Haultain: "That it is desirablethat the proceedingsof the LegislativeAssembly shall be recordedand publishedhereafter in the Englishlanguage only." 3s The LieutenantGovernor had already contracted for the French-languagepublication of the Legislature's 1890 proceedingsand these duly appearedin 1892.36 However,these werethe lastJournals to be printedin French.

Not contentwith this small victory,Haultain and his governmentproceeded over the next two years to surreptitiouslystrip the French languageof all officialstatus. Disregardingthe constitutional obligations, the executive terminated the French-languageprintings of

11 North-West Territories Act, R.S.C. 1886, c. 50, s. I 10 ns am. by S.C. 1891, c. 22, s. 18. " Edmund A. Aunger,"The Mysteryof the FrenchLanguage Ordinances: An lnvestigntioninto Ollicial Bilingualism and the Canadian North-West-1870 to 1895" (1998) 13 C.J.L.S. 89 at 99 (Aunger. "French LanguageOrdinances"]. II LegislativeAssembly, Journals of the Second l.egis/ati1·e A.rsembl)• of the Norlh-lVest Territories, Session /89/-92 (Regina, NWT: R.B. Gordon, 1892) at 110. \(, Aunger, "French LanguageOrdinances." supra note 34 al 120. LEGISLATINGLANGUAGE USE IN ALBERTA 469 departmentalreports and regulationsin 1893and of ordinancesand gazettes in 1895.37 As a result, in practice if not in law, Englishbecame the sole officiallanguage in the North-West Territories and then later in the provinces of Alberta and . Subsequent legislatorsand jurists, often recent immigrantsto WesternCanada and blissfullyignorant of the region's legal history, blindly conformed to the new English-only regime. If they occasionally permitted the use of French, they perceived this to be a temporary privilege rather than a legal right.

For example,although the AlbertaLegislative Assembly commonly published its statutes and regulations exclusively in English, Alberta's first French-speakingcabinet minister, Prosper EdmondLessard, proudly announced in 1909that the governmenthad translatedall its statutes into the French language.38 Two years later he backtracked somewhatclaiming simply that the most useful laws were available in French,"telles que celles concernant les Battages, les clotures, les animaux errants, les Societes d' Agriculture, les Privileges d'ouvriers, les mauvaisesherbes, la fabricationdu beurre et du Fromage,les feux de prairie, les Mines de charbon, les mariages,et deces, etc."39 Nevertheless,Lessard's newspaper,le Courrierde I 'Ouest,warned its readers that, in spite of numerousrequests, the government was still not convinced that there was a real demand.40 In subsequentyears the newspaper decided to reprint some statutes in its own pages.41

Similarly,Alberta's courts functionedalmost exclusively in the Englishlanguage. In 1924, however,the EdmontonBulletin reported a newsworthyexception where the litigants,their legal counsel and the judge, Lucien Dubuc, had all spoken French:

For perhapsthe firsttime in the historyof the Provinceof Alberta,court proceedingswere conducted entirely in the Frenchlanguage, with Judge Dubuc presiding, during the trialofa smalldebt case. Usuallywhen French or languagesother than Englishis spoken,the evidenceis translatedby the interpreterinto English, and all the argumentsare in English. At the conclusionof this case, both lawyerscongratulated the Court upon his presidingover proceedingsso unique in Alberta.42

In fact, these French-languageproceedings may not have been so unique. In l 921, for example,an English-speakingpolice constable,reporting on a criminalcase previouslyheard in St. Paul, revealed,"I should here state that by consent of the Justice, all the evidencewas taken in the French language and Mr. LaRue acting as clerk interpretedthe evidence and wrote same in the English language,consequently I was unable to follow the case to any extent; Mr. A.U. Lebel acting on behalf of the complainant."43

" EdmundA. Aunger,"Justifying the End of OfficialBilingualism: Canada's North-WestAssembly and the Dual LanguageQuestion, 1889-1892"(2001) 34 Can. J. Pol. Sc. 451 at 466. .. "Le probl~mefrnn,;ais de l'Ouest" le Courrierde /'Ouest [Edmonton/ (17 June 1909)4 . .. P.E. Lessard,Editor of le Courrierde/ 'Ouest,to A. Turgeon,Attorney General of Saskatchewan(29 September 1911)Saskatchewan Archives Board, File M3-17K. ... "Les ordonnancesen fran,;ais"l.e Courrlerde /'Ouest [Edmonton/ (19 October 191I) I. " Sec for example"Acte des liqueurs"le Courrierde l'Ouest (20 May 1915)6. "French is used exclusivelyin court here for first time" EdmontonBulletin (7 May 1924)2. " Constable H. Allen, Alberta ProvincialPolice, Crime Repon: Rex v. Ro11thier( 1921 ), Criminal Case Filesof the Departmentof the AttorneyGeneral, Albena ProvincialArchives, File 72.26. It is now very difficult to verify the frequencyof such occurrences,since the coun records for mostjudicial districts in Albena have been destroyed.In any case, these records were invariablywritten in English,with no 470 ALBERTA LAW REVIEW (2004) 42:2

The normal practicewas, unquestionably,to refuse the use of French. In 1931,Taylor J. of Saskatchewan'sCourt of King's Benchaffirmed that he himselfhadalways directed "that all proceedingsbe had and taken in English.'..wFurther, "[s]ince the establishmentof the SupremeCourt of the North-WestTerritories no practicepermitting the use ofFrench in the Courtsseems to have been countenanced.'"'5 He also claimed,by way of explanation,that the North-West TerritoriesAct, and s. 110 in particular,had been expressly"repealed by the in 1906.'"'6 Evidently,Taylor was not aware that Parliament had quicklycorrected this error by addingthe qualifyingphrase "except as regardsthe provinces of Saskatchewanand Alberta." 47

In addition, Taylor contendedthat Saskatchewan'sdisestablishment of the North-West courts had supercededs. 110.48 He also claimedthat provincialstatutes and regulations,such as the Judicature Ordinanceand the Rules of Court,recognizing English as the languageof practice and procedure, now stood "as expressingthe legislativewill of to-day."49 A half century later, GreschukJ. of Alberta's Court of Queen's Bench adopted this same line of reasoningin the Lefebvrecase. 50 He expressedthe opinionthat "once the provinceabolished or replacedthe courts of the Territoriesand establishedor constitutedtheir own provincial courts, s. I JObecame inapplicableto the new provincialcourts.'' 51 Further,since Alberta's InterpretationAc/ 2 had declared English to be the languageof public records including, necessarily,the writtenproceedings of a provincialcourt, Greschuk concluded that "ifs. 110 continuedin force in Alberta after the courts of the NorthwestTerritories ceased to exist, it was repealed by implication,operation oflaw or unavoidableinterference." 53

In the 1985 Paquette case, however, Sinclair J. lucidly rebutted these arguments.54 He noted, tactfully,that neither TaylorJ. nor GreschukJ. were apparentlyaware thats. 110had been revived in 1907 with respect to Alberta and Saskatchewan.55 Since that time, it had never been repealed,either expresslyor by implication.(Moreover, since the Paquettecase concernedcriminal procedure, such repeal was not within the competenceof the provincial government.)"Accordingly, s. 110 gives an accused and his counsel the right to use the French languagefor all purposesduring the preliminaryhearing and trial."56 Justice Sinclair

indicationoflhe languageactually spoken . .. G.E. Taylor, ''The Official Languageoflhe Courts in Saskatchewan"( 1931)9 Can. BIii'Rev. 277 at 277. .,," Ibid, at 283. Supra note 44 at 280. He was apparently referring here to Schedule A of lhe Revised Statutes of Canada, /906. See North-West TerritoriesAct, R.S.C. 1886, c. 50, as rep. by 1906, c. 43, s. 4 ., (ScheduleA) . Act to amend ScheduleA to the Revised Statutes 1906, S.C. 1907,c. 44, s. I (c) . •• Supra note 44 at 281-82. Ibid. at 282. R. v. Lefebvre( 1982),69 C.C.C. (2d) 448 (Alta. Q.B.) !Lefebvre)reprinted in Jules Deschenes,Alnsl parlerent le.rtr/bunaux ... , vol. 2, Conjlits linguistlquesau Canada, 1968-/985 (Montreal:Wilson & Latlcur) 661. All pinpoint referencesarc lo the Dcsch~ncsreprint. Dcsch~ncs,Ibid. at 669. R.S.A. 1922,c. I, s. 35. S11pranote SOal 674. Paquette v, R. in Right of Canada (1985), 40 Alta. L.R. (2d) 38 (Q.B.) [Paquette(1985)]. Ibid, at 43-4S. "· Ibid. at 39. LEGISLATINGLANGUAGE USE IN ALBERTA 471 furtherconcluded that the judges involved"must be able to comprehendthe French and the English languagesin both their spoken and written forms."s7 Two years later the Court of Appealagreed that"(s]ection l to of the North-WestTerritories Act does apply in Alberta," thereby upholdingthe right to use the French language in provincialcourts. 58 On the other hand, it also determined that this did not include the right to a judge who understoodthe language.Nevertheless, by this time Alberta's judiciary had already conducted 21 trials in the French language,including two jury trials.s 9

Languageuse in Alberta's LegislativeAssembly experienced similar vicissitudes. English was widely deemed to be the sole official languageand in 1971Claude-Armand Sheppard concludedthat "English has been the only languageever used in the legislatureor in any of its committees."60 In fact, French had been spoken on various occasions, but its use was considered a privilege to be reluctantlygranted or rudely denied. Documentingthis use is difficult, however, since there was no published Hansard prior to 1971, and newspaper reports are often the only availablesource.

In 1936 la Survivance reported that J. William Beaudry,the Member of the Legislative Assembley(MLA) for St. Paul and a member of the governing Social Credit party, had delivered parts of his maiden speech in French.61 His remarks, including praise for the contribution of the province's French-speakingpioneers, were warmly received: "De chaleureux applaudissementsont vivement souligne ses paroles." On the other hand the Edmonton Journal noted in 1952 that Liberal leader J. Harper Prowse's intervention, opposing the planned eliminationof"foreign" languagestaught in grade 10,had met with a more frosty response.62 He had spoken briefly "in what the house assumedwas French" to illustratethat the Frenchtongue was not widelyunderstood or appreciated;but a government backbencher,rising on a point of order,questioned "whether members were allowedto speak 6 French in the legislature."J A decade later a new Liberal opposition leader, ,commenting in Frenchon Canadianbilingualism, endured more blatant bigotry. A governmentmember allegedly demanded: "Mr. Speaker, have the honourable member from Lac La Biche speak white."64 The Speaker permitted Maccagno to continue, but requested an oral translation. By contrast, in 1975, Socred backbencher Charles Drain playfullyenlivened by asking Premier ,in French, why he had spokenonly one of Canada's two official languagesat the openingof the Canada Winter Games in Lethbridge.65 The unilingual Lougheed deftly handed the question off to the GovernmentHouse Leader, Louis Hyndman,who replied in French.

Ibid at 69 (emphasisin original). R. v. Paquelle (1987), 55 Alta. LR. (2d) I (C.A.) (Paquelle ( 1987)). Alhena, Government.Alberta ·s l.anguage Policy (22 June 1988)at 7. ,.,"' Supra note 4 at 297. "Premierdiscoursdudepute de St-Paula la Legislature"I.a Survimnce [Edmonton/ (26 February1936) 3. <,: "Language Courses Questiom:dAs Education Budget Studied" The Edmon/on Journal (20 March ,., I952) I. , Ibid. .. M. Maccagno,"Excerpt from unpublishedmemoirs." Sec Alberta, LegislativeAssembly, Standing Committeeon Privilegesand Elections,Standing Orders and Printing,,l,fim1tes (22 June 1987)exhibit 12. (,l LegislativeAssembly, Alber/a Hansard, IS (12 February 197S)at 588 (Mr. Drain). 472 ALBERTALAW REVIEW (2004) 42:2

In 1986,however, an MLA claimedthat the use of Frenchwas a legalright and in support cited s. 110 of the North-West Territories Act.66 Leo Piquette, the newly-electedNew Democrats(ND) member for Athabasca-LacLa Biche, proudlyannounced that ''j'ai choisi ce moment historique pour indiquer fortement que comme un depute dans I' Assemblee legislativede I' Alberta,j'assume mes droits selon l'article 110 des statuts de Northwest Territories Act de 1891."67 His comments were greeted with silence, but no evident opposition.Nevertheless, almost a year later,when he againspoke in French,this time during question period, his words sparked a bizarre politicalcrisis. 68 "Thank you, Mr. Speaker.To the Minister of Education, le ministre de l'education. Mr. Speaker, these questions are pertainingto section 23 of the ConstitutionAct signed by this provinceon April 19, 1982. Les franco-Albertainsattendent impatiemmentdepuis 1982."69 At this point the Speaker intervened,called Piquetteto orderand commanded:"En anglais,s' ii vousplait. ... The Chair directs that the questionswill be in Englishor the memberwill forfeitthe position." Piquette immediatelycontested the Speaker's decision,claiming that "the languagerights guaranteed in Section 110of the North West TerritoriesAct were neverextinguished and do still obtain in the LegislativeAssembly of the Provinceof Alberta."70

Governmentmembers were incredulous,refusing to believe that this statute, previously unknownto them, could still have any contemporaryrelevance. Nevertheless, they sent the questionto the StandingCommittee on Privilegesand Electionsfor furtherstudy. There the parliamentary counsel, Michael Ritter, further compounded the confusion, erroneously proclaimingthat the statute was indeed irrelevantand rudelydisparaged expert testimonyto the contrary. He asserted that the Alberta LegislativeAssembly was completelysovereign and supreme in its powers, unfetteredeither by law or by courts, and thus "the assumption of parliamentary independenceand the right to regulate one's own Chamber prevails."71 Moreover, he advised the members that convention could extinguish statute and that in Alberta the conventionwas "basically one of a unilingual Legislature."72 The committee acceptedthese argumentsand decided,on a motionfrom the DeputyPremier, David Russell, that Leo Piquette had breachedthe privilegesof all membersof the Assembly"by his failure to uphold the absolute authorityof the Speakerto rule on points of order and to accept such rulings without debate or appeal."73 It recommended,therefore, that he "unconditionally apologizeto the Assembly."74 Laterthe sameyear, the Legislaturealso amendedits standing orders to assert that "the workinglanguage of the Assembly,its committees,and any official publicationsrecording its proceedingsshall be in English."75

,.,"· Supra note 33. LegislativeAssembly, Alberta Hansard, 1 (20 June 1986)at 160 (Mr. Piquette). .. See TimothyChristian, "L' AffairePiquette" in DavidSchneiderman, ed., language and the State: The ,.. , Law and Politics of Identity (Cowansville,Quebec: Yvon Blais, 1991)at 107. LegislativeAssembly, Alberta Hansard,32 (7 April 1987) at 631. 7n L. Piquette,MLA Athabasca-LacLa Bichc, to D. J. Caner, Speaker,Legislative Assembly of Alberta (8 April 1987).See Alhena, LegislativeAssembly, Standing Committee on Privilegesand Elc:ctions, Standing Orders and Printing,Minutes (6 May 1987)exhibit 2. 71 Alhena, LegislativeAssembly, Standing Committee on Privilegesand Elections,Standing Orders and Printing, Minutes (23 June 1987)at I S4. ,: Ibid at 174. " Alhena, LegislativeAssembly, Standing Committee on Privilegesand Elections,Standing Orders and Printing, Minutes (2S June 1987)at 212. " /hid. LegislativeAssembly, Alberta Hansard.99 (27 November 1987)al 2093 (Hon. LeslieG. Young). LEGISLATINGLANGUAGE USE IN ALBERTA 473

A few months later, in R. v. Mercure,16 the Supreme Court of Canada confirmed unequivocallythats. 110of the North-West TerritoriesAct1 7 was still in vigour. It noted that Jawsgiving expression to languagerights possess an almost constitutionalnature and can only be repealed by "clear legislativepronouncement." The restructuringof the courts or other institutionshas no effect on such provisionssince "different courts can come and go but the law remains." 78 Similarly,the Court ruled that the adoption of certain rules of court indicatingthat Englishis the languageof proceedingsshould not be interpretedas interfering with vested rights. Where there is a conflict between a fundamentallaw and other specific legislation,"the humanrights legislationmust govem."79 Further,the long-standingpractice of using English exclusivelyin the debates, statutes and court proceedingsdoes not in any way changethe statutoryprotection accorded the French languagesince "statutes do not, of course, cease to be law from mere disuse."80 In sum:

Section 110of TheNorth-West Territories Act wasa lawexisting at the eslllblishmentof the province.Since no provisionof the SaskatchewanAct was inconsistentwiths. 110 or was intendedas a substitutefor it. and since there was no amendmentof the provisionsof that sectionwith respectto the languageof the statutesand of the proceedingsin the courts, it followsthats. 110continues in effect for that purposeand that the statutes of Saskatchewanmust be enacted,printed and publishedin Englishand Frenchand thal both languagesmay be used in the Saskatchewancourts. 81

Saskatchewanmoved quickly to deal with this awkwardsituation by adopting, in both official languages,a law explicitly declaringthats. 110 of the North-West Territories Act "does not apply to Saskatchewanwith respect to matters within the legislativeauthority of Saskatchewan."82 Alberta, as we shall see, followedsuit shortly afterwards.u

8. THE SCHOOL ACT, 1905TO PRESENT

Section 136 of the North-WestTerritories' School Ordinance had establishedEnglish as the sole languageof school instructionand in 1905this provisiontoo was carried over into the new provinceof Alberta.Specifically, as the section's firstparagraph stated: "All schools shall be taught in the English languagebut it shall be permissiblefor the board of any district to cause a primary course to be taught in the French Ianguage."84

Daniel Mowat, the MLA for South Regina, had successfullyproposed this provision in 1892,arguing that "we would never have true patriotic feeling in the country until there was one language."8s A year earlier he had introduceda similar proposition, but without any concessionto the French language.Mowat justified his revised proposal by explainingthat the "provision to make the teaching of English compulsory was rendered necessary on

i(, (198811 S.C.R. 234 at 237 (Mercure). ,.77 Supra note 33. Mercure,supra note 76 at 263. , Ibid at 267. .. Ibid. at 2SS. ., Ibid. at 236. •2 See language Act, S.S. 1988,c. L-61, s. 13. Sec languages Act, S.A. 1988,c. L-7.5, s. 7. SchoolOrdinance,C.O.N.W.T. 1905,c. 75,s.136. "The Legislature"The /Regina/ leader (18 August 1892) I. 474 ALBERTA LAW REVIEW (2004) 42:2

account of the large influx of foreigners.An exception was made in favor of teaching a primarycourse in French,as the Frenchwere fellowCanadians." 86 This "exception"allowed a course in reading and compositionat the primary level (that is, during the first two years ofschooling).87 However,the prescribedtext, a bilingualreader, was - perhaps by design - best suited for teachingEnglish to the French-speakingpopulation. When the course was offered,the allottedtime generallyvaried between a half-hourand a full hour per day, strictly controlledby the local school inspector.88

A secondparagraph, adopted in 190I after Gennan-speakershad petitionedthe Legislative Assemblyfor schoolinstruction in Gennan, pennitteda schoolboard to "employone or more competentpersons to give instructionsin any language other than English" subject to the departmentalregulations and on condition that this not interfere with the required school program and that the costs be collected directly from the parents concerned.89 The Department of Education regulations subsequently provided some clarification: "Such instructionshall be givenbetween the hoursof three and four o'clock in the afternoonof such schooldays as may be selectedby the board and shall be confinedto the teachingof reading, composition and grammar. The text books used shall be those authorized by the Commissionerof Education." 90 The programwas seldom implemented,however, since, as the legislatorshad probablyanticipated, the immigrantpopulation lackedthe means to pay for it.91

Justifiably,John R. Boyle, Ministerof Educationfrom 1912to 1918,could boast that in Alberta"we have no Bi-lingualschools .... Englishis the only languagepennitted to be used as the medium of instruction in our schools." 92 In 1915, during a by-election held in Whitford, he accused the Conservativeopposition of catering to the immigrantvote by 9 advocating the establishment of Ukrainian schools.J The opposition, eager to prove its innocence,immediately moved a resolution:"That this Houseplace itselfon record as being opposedto Bi-Iingualismin any fonn in the Schoolsystem of Alberta,and as in favourof the English languagebeing the only languagepermitted to be used as the mediumof instruction in the schools of Alberta, subject to the provisionsof any law now in force in the Province in that effect."94 The Liberal government,caught in its own trap, voted with the opposition and the resolutionpassed unanimously.

"·, "LegislativeAssembly" 1ne Edmonton8111/etin (22 August 1892)2 . . YvetteT.M. Mahe,"L ·enseigm:ment du fran~aisdans lcs districtsscolaires bilingues albenains, 1885- 1939" ( 1992)4 Cahiers franco-canadiensde l'Ouest 291 at 294-95. .. Ibid at 295. School Ordinance,O.N.W.T. 1901,c. 29, s. 136. ... Regulationsof the Departmentof Ed11calio11(Regina: John A. Reid, 1903),s. 25. VI In 1916 Bishop Legal received legal advice that this regulationconflicted with the provision for a French-languageprimary course taught during school hours. His solicitors also noted that "no other languageother than Frenchhas been taught betweenthe hoursof three and four in the afternoonlimited to grammar,reading, and composition,except perhaps in some isolateddistricts where the teacher had taken the libeny to do as she pleased."See s:r.Rusak, Relatio11sin Educationbe11,•ee11 /Jishop legal and the Alberta Govemmenl, 1905-192(}(M.Ed. Thesis, Universityof Alhena, 1966)at 94-95. Cited in J. Castell Hopkins, The Ca11adla11Annual Review of Public Affairs, 1913(Toronto: Annual ReviewPublishing Company, 1914)at 655. •JI "La question bilingue a la legislatured'Albena" le Courrierde l'011est(8 April 1915) I. '" J. Castell Hopkins, The CanadianA111111al Review of Public Affairs, 1915 (Toronto:Annual Review PublishingCompany, 1916) at 702. LEGISLATINGLANGUAGE USE IN ALBERTA 475

In the meantime, the French-speakingcommunity lobbied cautiously for the right to expand French-languageinstruction in their schools. Knowingthat the governmentwould not amend the School Ordinance9s for this purpose, French leaders astutely focused instead on the interpretation given the existing statute. In particular, they sought to redefine the expression "a primary course" to mean any instructiongiven during the first two years of schooling. In 1925 these efforts finally paid off and the Departmentof Education discretely published new instructions for the teaching of French:

In all schools in which the board by resolutiondecides lo offer II primarycourse in French, in accordance with Sec. 184 of the School Ordinance, French shall be for the French-speakingchildren one of the 11u1horizcd subjects of study and may be used as mediumofinstruclion for other subjectsduring lhe first school year. Oral English must, however, from the beginning be included in lhe curriculum as a subject of study. During the second year and after the child has learned to read in lhe mother tongue, the formal teaching of reading in English shall be begun. From Grade Ill on, a period not exceeding one hour each day may be allotted to the teaching ofFrench. 96

Four decades later the provincial government modified the School Act91 to fonnally confinn this practice. A 1964 amendment provided that French might be the language of instructionup to grade nine on condition that in grades one and two "at least one hour a day shall be devoted to instruction in English," in grade three "not more than two hours a day shall be devoted to instruction in French," and in grades four through nine "not more than one hour a day shall be devoted to instruction in French."98

In 1968, the national tidal wave of official bilingualism, marked by a federal Official languages Act,99 carried the province along in its wake. The Governmentof Alberta again amended the School Act, 100 this time to pennit the use ofFrench for up to "50 percent of the total period of time devoted to classroom instruction each day" in grades three through twelve.101 In 1971 it also took a significantstep towards multiculturalismby placing all other languages,the so-called "heritage languages,"on a footing similar to French: "A board may authorize (a) that French be used as a languageof instruction,or (b) that any other language be used as a language of instruction in addition to the English language, in all or any of its schools." 102 The Ministerof Educationlater pennitted instructionin these languages,notably Ukrainian,during 50 percent of each school day for grades one through three.101 In 1976this was extended to grades four through six, in 1980 to grades seven and eight, and, finally, in

Supra note 84. Alberta, Legislative Assembly. "'Instructions concerning the Teaching of French in the Elementary Schools of the Province of Alberta" in Sess/0110/Papers ( 1925), Vol. 20. Paper No. 4-c at I. ,,. Supra note 12. A11Acttoame11d the School Act. SA 1964, c. 82. s. 43, amending R.S.A. 1955. c 297. s. 386 [Sc/,(}(}/ Ame11dme11tAct, /96./1. Official La11guagesAct, S.C. 1968-69. c. 54. 1111 Supra note 98. 1111 A11Acttoame11dthe School Act. S.A. 1968, c. 89. s. 24. amending R.S.A. 1955. c 297, s 386 (Schol}/ Amendment Act. /968). A11Ac11oamendtheSchoolAct, S.A. 1971, c. 100. s. 18, amending R.S.A 1970, c 329. s 150 [Sc/w(}f Amemdment Act, /97/). 101 P. Lamoureux, Bilingual Schooli11gi11 Alberta (Edmonton: Alhena Education. 1984) at 3-4. 476 ALBERTA LAW REVIEW (2004) 42:2

1983 to grades nine through twelve.104 In a 1988 report the government declared that: "Alberta Educationsupports the provisionofopportunities for studentswho wish to acquire or maintainlanguages other than Englishor Frenchso that they may have access to a partial immersion(bilingual) program or second languagecourses in languagesother than English or French.''105 The same report noted that some 2,775 students were enrolled in these bilingualprograms, chiefly in Ukrainian(1,362), but also in Hebrew(458), Gennan (339), Arabic (265), Mandarin(234) and Polish ( 117).106 They accounted for 1.5 percent of all enrollmentsin provinciallanguage programs or courses.

In 1976 the provincial governmentagain expanded the number of hours available for French-languageinstruction by reducingthe English-languageminimum. As before,schools were obliged to offer at least one hour of Englishinstruction per day in grades one and two but they were now freed from the 50 percent rule for subsequentgrades. Instead, French­ languageschools could limit their Englishinstruction to 190 hours per year in grades three through six, 150 hours in grades seven through nine and 125 hours in grades ten through twelve.107 This meant, in effect, that French-languageinstruction could occupy up to 80 percent of regular class time.

On 23 February 1978 PremierPeter Lougheedsigned a national statementon minority languagerights: "Each child of the French-speakingor English-speakingminority is entitled to an educationin his or her languagein the primaryor secondaryschools in each province wherevernumbers warrant." 108 The followingday, however,he issued a distinctlyAlbertan clarification:

It shouldbe recognizedthat the provisionof Frenchlanguage instruction is not limitedto thosestudents whose molhcrtongue is French.In fact,because of Alberta'spopulation mix anddistribution, many boards must rely on largenumbers of studentswhose mother tongue is otherthan Frenchin establishingclasses where French is used as the languageof instruction.It willcontinue to be our policyto allowadmission to Frenchlanguage programsregardless ofmother-tongue. 109

Alberta thereby diverged from the national consensus,refusing to distinguishbetween immersionschools designed for the English-speakingmajority and Francophoneschools intendedfor the French-speakingminority.

This refusal took on added significancewhen, several years later, the Constitution Act, I 982 guaranteedthe right of officiallanguage minorities to have their childreninstructed "in minority languageeducational facilitiesprovided out of public funds."110 Since Alberta's French-languageeducational facilities were, in reality, immersionschools and not minority schools, they fell considerablyshort of the constitutionalrequirement. In 1982 a group of

10• Ibid. Albcrtu,Government of Alberta,l.anguage Education Policy/or Alhena (Edmonton,1988) at 16. ltW, Ibid. at 22. llll French language Regulations,Alta. Reg. 250/76. IIIM Canada, Premiers'Conference, "Statement on Language"(23 February1978). 111•, Alberta,Government of Alberta,"Statement by PremierPeter Lougheed and EducationMinister Julian KoziakRE: MinorityLanguage Instruction" (24 February1978). I IO ConstitutionAct, /982, supra note IS, s. 23(3). LEGISLATINGLANGUAGE USE IN ALBERTA 477

French-speaking parents, led by Jean-Claude Mahe, Angeline Martel and Paul Dube, attempted to obtain French minority schooling for their children by contacting, first, the Minister of Educationand then, on his advice, the EdmontonPublic School Board and the EdmontonCatholic School Board. When their efforts failed, the parents took the province to court, claiming that the School Act111 contraveneds. 23 of the ConstitutionAct, 1982.112 In 1985 Purvis J. of the Alberta Court of Queen's Bench ruled in their favour and ordered the province to make specific provision for French minority schools.113 Two years later, Kerans J., speaking for the Alberta Court of Appeal, confirmedthis decision.114

The province responded in 1988 by adopting a School Act that now recognized, albeit awkwardlyand ambiguously,the right to French minorityschooling: "If an individualhas rights under section23 of the Canadian Charter of Rights and Freedomsto have his children receive school instructionin French, his children are entitled to receive that instructionin accordancewith those rights whereverin the Provincethose rightsapply." 1 is Unsatisfied,the parentsappealed to the SupremeCourt of Canadaclaiming that the provinciallegislation still failedto provide for minorityschools, that is, schoolsmanaged and controlledby the French­ speaking minority. The Court agreed and, in 1990, ruled that the province must enact legislationgranting exclusiveauthority to the French minorityfor decisions

relatingto the minoritylanguage instruction and facilities,including: (a) expendituresof funds providedfor such instructionand facilities;(b) appointmentand directionof thoseresponsible for the administrationof such instructionand facilities;(c) establishmentof programsof instruction;(d) recruitmentand assignmentof teachers and other personnel;and (e) the making of agreements for education and services for minority languagepupils. 116

The Governmentof Alberta reacted negativelyto this decisionand initiallythreatened to use the so-called"notwithstanding" clause in orderto overridethese languagerights. 117 When advised that s. 23 was not subject to derogation, it reluctantlybegan searchingfor a school management model that would meet the standards defined by the Supreme Court. It appointed a French LanguageWorking Group charged with recommendingan appropriate modeland then latera FrancophoneSchool Governance Implementation Committee, charged with implementingthe model.Finally, in 1993,the LegislativeAssembly amended the School Act•18 to provide for minorityschool boards, describedformally as "Regionalauthorities for Francophone Education Regions"119 By this time, there were already 13 French minority schools in the province, with a total enrollmentof2,105 students.'20

Ill S11pranote 12. Ill S11pranote IS. IB Mahe v. Alberta (198S),39 Alta. L.R. (2d) 21~. ... Mahe v. Alberta (1987), S4 Alta. L.R. (2d) 212. IIS School Act, S.A. 1988, c. S-3.1, s. S(I). II<• Mahe v. Alberta, (1990) I S.C.R. 342 at 34S. 117 For a more detailed examinationof the Alberta government's response to the Mahe decision, see EdmundA. Aunger,"Dispersed Minorities and SegmentalAutonomy: French-Language School Boards in Canada" (1996) 2 Nationalismand Ethnic Politics 191 at 205-11. "" S11pranote 11S. · ll'J School AmendmentAct, 1993, S.A. 1993.c. 24. s. 24. l!lJ Aunger,s11pra note 117 at 207. 478 ALBERTA LAW REVIEW (2004)42:2

The revisedschool system featured seven new school districts or "FrancophoneEducation Regions"that together covered the entire province,although each centered on a different urbancluster: Edmonton, , St. Paul-,Peace River-Fahler, Fort McMurray, Red Dearand Lethbridge.The regionalauthorities were responsiblefor the managementand control ofFrench minorityschools in their region, including:tracking eligible students and facilitatingtheir education in French, representing French-speakingparents, promoting French-languageinstruction in the province,maintaining links with otherregional authorities and developingrules and regulationsfor Frencheducation. 121 Further,as school boards,they were empoweredby the School Act to establish policies for the provision of educational services and programs, to employ teachers and non-teaching personnel including administratorsand supervisors,to maintainand furnish their real property, to make rules respectingthe attendanceand transportationof studentsand generally, to deal withall matters within their jurisdiction.122

The Federation des parentsfrancophones de /'Alberta was charged with organizingthe first elections,held in March 1994.The regionalauthorities, themselves, were responsible for subsequentelections, to be heldevery three years beginning in October 1995.(Legislative reformsresulted in the most recent electionsbeing delayed until May 2002.) Any Canadian citizen 18 years or older and an Alberta resident is eligible for election to a regional authority.123 The right to vote, however, is limitedto any "Francophone"who has "a child who is a studentenrolled in a schooloperated by the Regionalauthority." 124The Government of Alberta is authorizedto extend voting rights to the membersof a prescribed "class of individuals,"presumably the province's French-speakingpopulation, but has neverdone so. The restricted franchisewas designedto prevent opponentsof French minorityeducation from takingover regionalauthorities, and then eliminatingthe French-languageschools. As such, it revealsmuch about Alberta's French-speakingcommunity and its bitter strugglefor minoritylanguage rights.

The revised School Act published in 2000 contains a preamble that, for the first time, highlightsminority schooling, proclaiming that

the Regionalauthority of a FrancophoneEducation Region has a unique responsibilityand the authority10 ensure that both minority languageeduClllional rights and the rights and privilegeswith respect to separate schoolsguaranteed under the Constitutionof Canadaare protectedin the Region,such that the principlesof francophoneeducational governance arc distinct from, not transferablelo nor a precedent for, the English educationalsystem. 12s

This responsibilitywas reiteratedmore preciselyin a 200 I amendmentrequiring that "(a] Regional authority must designate each school either as a public school or as a separate

Ill Alberta,Alberta Education,Guide de mlse en oe11vrede la geslion sco/a/refra11copl1one(Edmonton: School Business AdministrationServices, 1994)at 9. I!! S11pranote IIS, ss. 44, 74, 77. (Accordinglo s. 3 of the School AmendmentAcl, /993, s11pranote I 19, any referencein the law to a school board is deemed to include a regional authority.) IH School Acl, R.S.A. 2000, c. S-3, s. 256(3). Ibid., s. 256(1). Ibid.. Preamble. LEGISLATINGLANGUAGE USE IN ALBERTA 479 school."126 In 2003-2004the provincecould boast five regionalauthorities administering 18 French Catholic schools and seven French Public schools with a combinedtotal of 3,638 registeredstudents. 127

C. SECTION 27 OF THE INTERPRETATIONACT, 1919-1980

On 17 April 1919 the Alberta Legislatureadopted an amendmentto the Interpretation Act, 128 affirming English as the province's official language. It appended an additional interpretiverule to the Act's already lengthy60-point list:"Unless otherwise provided where any Act requires public records to be kept or any written process to be had or taken it shall be interpretedto mean that such recordsor such processshall be in the Englishlanguage." 129 The provincehad inheritedsome 124ordinances from the North-WestTerritories, regulating a wide range of activities including elections, governmentdepartments, public printing, public health, civil justice, marriage, professions and trades, companies, municipalities, schools,agriculture, liquor sales, tax assessmentand insurance- and the great majoritydid indeedrequire the keepingof publicrecords or the takingof writtenprocess. 130 The Elections Ordinance,for example,described in exquisitedetail a plethoraof requiredwritten records and procedures including the issuing of writs, the publicationand posting of notices, the takingof oaths and statements,the printingof ballots,the recordingof electoralinformation, the keeping of poll books and record books, the certificationof nominationsand elections, the serving of summonsand the filing of appeals.131

Oddly, the English language amendment was buried deeply within an omnibus housekeepingbill modifying51 different statutes, formallyentitled An Act to amend The FactoriesAct, The liquor Act, The Soldiers• Home Tax ExemptionAct, and certain other Acts and Ordinances.132The Bill madeonly a fleetingappearance in the legislature,attracting littleattention and no debate. Its secondreading, late on a Mondayafternoon, was completely upstaged by lengthy and heated exchanges concerning the practice of chiropractic. The legislative reporter's summary was revealinglybrief and inarticulate:"The house agreed withoutdiscussion to the secondreadings of two acts introducedby the attorneygeneral, one to amendthe factoriesact, the liquoract, and other effectedby the specialrevisions of certain measures;and the other to postpone the commencementof certain other acts."133

John R. Boyle, now the Attorney General, had sponsored the Bill and, whatever his reasoning,his timingwas impeccable.Alberta was at the time a fervid hotbedof pro-English exclusivism. The Great War had recently ended and the province was celebrating its returningheroes, virtually all British-bornor British-originvolunteers. Gerald Friesen has observedthat there was, at the time, a "growinghatred of al I things German,"combined with

I!(, School AmendmentAct. 200/, S.A. 2001, c. 27, s. 25, amendingR.S.A. 2000, c. S-3, s. 2SS.3. 1:1 Eric Batalla& Sandra Griffon,Eco/esfruncophones. Alberta (Edmonton: Le Franco& La Federation des conseilsscolaircs francophones de l'Albcna, 2003). S.A. 1906,c. 3. IN Statute law AmendmentAct, S.A. 1919,c. 4, s. 30, amendingS.A. 1906,c. 3, s. 7. 110 C.O.N.W.T.1905. Ill Elections Ordinance,C.O.N.W.T. 1905, c. 3. 1)2 Supra note 129. I\\ "ChiropracticBill removedfrom Agenda" The[Edmonton] Morning Bulletin (15 April 1919)at 5. 480 ALBERTA LAW REVIEW (2004) 42:2

prejudiceagainst "southeasternEuropeans, including especially the Ukrainianimmigrants from the Hapsburg empire," and also "European pacifists, including Doukhobors and Mennonites."134 A few monthsearlier the federal governmenthad suppressedpublications in "enemy"languages including German, Russian, Ukrainian, Hungarian and Finnish. us Only a week prior to the Bill's second reading, Attorney General Boyle had reminded the provincialhouse that "[he] won [his] electionby the Englishvote," unlikean opponentwho had advocated"Russian schools for Russian people."136 "I stood for one school and one language,and naturallymy majoritycame from the Englishelectors."m

The legislature'sinconspicuous support for the Englishlanguage amendment contrasted dramaticallywith the outspoken stance of the Orange Order. A few weeks earlier, on 20 March 1919,at meetingsaddressed by the Mayorof Edmontonand the Lieutenant-Governor of Alberta,the Grand Orange Lodge of Alberta adopted the followingresolution:

That in the interests of a united Canada urgent representationbe made to the federal and provincial governments,so rar as their respectivejurisdictions are concerned.(I) to enactlegislation whereby the English languageshall be the solemedium of instructionin eveiy gradeof cveiy schoolunder government control, and (2) 10enforce the existinglaw of the landso that withinthe provinceof Alhena the Englishlanguage only shall be rend officiallyon any public fonn or document,or in any public office, schoolor assembly.138

The Orangemenalso calledupon the federalgovernment to "enact legislationpreventing the immigrationof persons from alien enemy countriesor of such extraction,for a period of twentyyears and further,to deport all such aliens now in Canada unless they furnishample proof ofloyalty."139

In 1922,when Alberta's statuteswere consolidated,the Englishlanguage provision was numbered s. 35, labelled "English as official language" and published in revised form: "Wheneverby any Act public recordsare requiredto be kept or any writtenprocess to be had or taken, the records or process shall be kept, had or taken in the Englishlanguage." 140 The 1942 consolidationretained this same wordingand labelling,although the provision now becames. 40. 141 The I 955 revisedstatutes made minor changesto the text, but retainedthe numberand label.142 Three years later,however, the legislatureadopted a new Interpretation Act, still keepingthe Englishlanguage provision, but this timeass. 27, withthe label"Public records"and the text: "Where by an enactmentpublic recordsare requiredto be kept or any writtenprocess to be had or taken,the recordsor processshall be had or taken in the English language."143 The provisionwas repealed in 1980.144 (The frequentrenumbering may have

Gerald Friesen,The CanadianPrairies: A Histo,y(Toronto: UniversityofTorontoPress, 1984)at 3S2. IJj Ibid. at 354. '"· "Spirited Passage between the Attorney General and Jas. Weir enlivens Work on Estimates" Tl,e [Edmonton}Morning Bulletin (8 April 1919) I. ,IH Ibid. .. ··Resolutionspassed by the Orange Lodge" Tl,e [Edmolllonj Morning Bulletin (21 April 1919) I. IW Ibid. •~· , InterpretationAct, R.S.A. 1922, c. I, s. JS. .. InterpretationAct, R.S.A. 1942,c. I, s. 40. ,., InterpretationAct, R.S.A. 1955, c. 160, s. 40. ,.. InterpretationAct, S.A. 19S8,c. 32, s. 27. InterpretationAct, S.A. 1980,c. 70. s. 41. LEGISLATINGLANGUAGE USE IN ALBERTA 481 caused occasionalconfusion: Claude-Annand Sheppard reported, mistakenly, that it had been 145 repealed in 1958. )

Alberta's English language provision was rarely applied by the courts. In a 1965 ruling on the validity of a French-languagebill of sale, Tavender J. described the provision as "the only reference in any Alberta statute to the use of the English language," but he found it of no assistance in the case at hand.146 In his view the bill was a private document, while the Interpretation Act referredto public records,defined as "certain records or documentswhich are kept by certain government officials whose duty it is to inquire into and record permanentlymatters and facts about public matters."147 Justice Tavender instead looked to earlier legislation, including the North-West Territories Act, 148 determining thereby that French was the "customary language of the people," and that its use "continued to be lawful."149 Further, in an unexpectedaside, he concluded, "In the light of the above statutes it would appear that in the Province of Alberta French is a permissive language in the LegislativeAssembly and in the Courts."'so

This startling conclusionwas largely ignored.In Lefebvre, for example,Greschuk J., took no notice, holding that "if s. l lO continued in force in Alberta after the courts of the Northwest Territories ceased to exist, it was repealed by implication,operation of law or unavoidable inference."151 More specifically, Greschuk J. held that "s. 27 of the Interpretation Act, 1958, undermines the necessary intendment of s. 110 and the latter accordingly must be held to be repealed by implication."152 At the provincial court level, Marshall J. found similarly that the English language provision had repealed Alberta's official bilingualism,the Lefebvre decision beinga bindingauthority. m However,on appeal Sinclair J. disagreed, ruling thats. 110 had never been repealed.154 Justices Stevenson and Irvingof the Court of Appeal upheld this decision on further appeal.,ss Nevertheless, neither they nor Sinclair J. made any reference to the Interpretation Ac/.

In 1980, when the Alberta legislature adopted a new Interpretation Act, the English language provision finally disappeared - as quietly as it had originally appeared.156 A governmentbackbencher introduced the Bill, but gave no explanationor justification.157 Nor

us Sheppard, supra note 4 at 91. '"' GeneralMotor.r Acceptance Corporation of CanadaLtd.,,. Pero:ni( 196S),51 D.L.R.(2d) 724 at 736 (Alta. Dist. Ct.). "' Ibid ... Supra note 33. ... Ibid. at 7301T. Ibid. at 734. ·~·.,. ufeb,•re ( 1982). supra note SOat 6 74. .,, Ibid. at 673. Belll'ee,rHer Ma1estyThe Quee11a11d Luc Paq11ette(26 October 1984).(Alta. Prov. Ct) lunrc:portc:d) reprinted in Jules Deschenes,A msi parleretllJes trihuna,LL . • vol. 2. Co,,jlus /i11g111s11ques,111Ct1t1C1da. ,,. /968-1985(Montreal: Wilson & Lafleur) 683 at 689,693. Paquel/e ( 1985),supra note S4. Ill Paquel/e ( 1987),supra note S8. u,. Supra note 144, c. 70. ll7 LegislativeAssembly, Alberta Hansard,64 (20 November 1980) at 1613 (Mr Wolstenholme) 482 ALBERTALAW REVIEW (2004) 42:2 was he ever called uponto do so. The Bill sailed throughthe assembly,including committee of the whole, withoutquestion or comment.isa

D. THE l.ANGUAGU ACT, 1988 TO PRESENT

On 25 February 1988,less than a year after the Alberta LegislativeAssembly had denied ND memberLeo Piquettethe right to speak Frenchand bullyinglydenigrated his protests, the SupremeCourt of Canadaruled thats. 110of the North-Wes/Territories Act, 159providing for official bilingualism,did indeed remain in effect in Saskatchewanand, by implication, in Alberta.160 This meant that both English and French could be spoken in the provincial legislatureand courts. Further,the Legislaturewas obligatedto publish its statutes in both languages.

Nevertheless,the province could, if it wished, adopt a statute to repeal this provision although,paradoxically, any such statute had to "be enacted, printed and published in the Englishand French languages."161Thus, on 22 June 1988,Attorney General James Horsman introduceda bilingualbill entitledthe languages Act, providingthat "[s)ection I 10 of The North-West TerritoriesAct, chapter 50 of the Revised Statutesof Canada,as it existed on September I, 1905,does not apply to Albertawith respectto matters within the legislative authorityof Alberta."162 Horsmanjustiftedthe new Bill withoutembarrassment and without apology:

Mr. Speaker,we are dealingwith the realityof the fact that the Mercuredecision has said that an Act passed in 1886- which had never been used in this province,never been implemented,had fallen into complete disuse in the NorthwestTerritories prior to Alhena becominga provincein I 90S - is still the law because ofa technicality.... We have now been told by the SupremeCoun of Canadahow we must proceedin order 16 to changethat antiquated,unused piece of legislationwhich was a hangoverfrom l 886. J

The Assembly's first step had been to suspend the standing order, adopted only a few monthsearlier, on November27, establishingEnglish as the languageof the Legislature,its committeesand its publications,and preventingmembers from speakingFrench without the Speaker's prior consent. The Attorney General then submitted his new Bill, arguing, exclusivelyin English, that it was "fair and reasonableand practical and recognizes the reality of Alberta and the distinct nature of Alberta society."164 The Liberal leader, Nick Taylor,retorted that it was"nothing more than summoningup the prejudicesof centuriespast and taking a poke at a defenseless minority under the guise that it reflects Alberta's reality."165 AttorneyGeneral Horsman was the only memberof the governingConservative party to participate in the debate. Nine members of the 20-personopposition intervened, however,and severalmade commentsin French.The Speakerconducted the proceedingsin both languages,announcing each readingand each vote in Englishand in French,as did the

'" LegislativeAssembly, Alberta Hansard, 68 (26 November 1980) ut I 7S I (Mr. Wolstenholme). S11pranote 33. lf,11 Merc11re,s11pra note 76. Ibid. at 280. 1,,: S11pranote 83, s. 7. )t,\ LegislativeAssembly, Alberta Hansard, I02 (30 June 1988)at 2171 (Mr. Horsman). Ibid. at 2170. Ibid. LEGISLATINGLANGUAGE USE IN ALBERTA 483 chainnan in committeeof the whole. In one typically ironic tum of events, however, the chainnan refused to accept an oppositionamendment calling for the translationof selected laws into French becausethe amendmentitself had not been translatedinto French.'66

The Languages Act suppressed s. I IO of the North-West Territories Act and its requirementthat all statutes be enacted and printed in French. This measure drew public attention and was hotly debated. However,the Act also provided that "[m]embersof the Assemblymay use Englishand French in the Assembly"167 and that "[a]ny person may use Englishor Frenchin oral communication"in court proceedings.168 These provisionsattracted relativelylittle public discussion.

There has been a modest increase in French languageactivity in the Legislaturesince 1988, but its use remains relativelysymbolic. For example, in 1999 Nancy MacBeth,the leaderof the officialopposition, spoke in Frenchwhen she congratulatedthe governmenton its creation of a Secretariataux affaires francophonesbut then she repeatedher remarks in English.169 Two years later the president of this secretariat, MLA Denis Ducharme,also spoke in Frenchwhen he announcedthat the Associationcanadienne-fran~aise de I' Alberta was celebrating its 75th anniversary.170 Ducharme did not repeat this announcementin English,but he did provide a writtentranslation, and this too was printed in Hansard. 111

Frenchcontinues to get shortshrift in civilmatters before Alberta's courts,largely because the provincehas failed to guaranteethe presenceofa bilingualjudge. As McIntoshJ. of the ProvincialCourt has pointedlyexplained:

Wilh rcspecl,you can do all the talkingin Frenchthat you like but in Alberta,with respect.Provincial mallers arc conductedin English,so if you're goingto communicatewith me you'll have to do ii in English,or you will have 10have somebodyhere lhal can assist you in English.But this lrial is conductedin English.Tha1's the law in Alberta,for ProvincialStatutes. 172

In criminalmatters, of course,the governmentmust complywith federal law and this grants an accused, on application,the right to "be tried before a justice of the peace, provincial courtjudge,judge or judge andjury, as the case may be, who speak the official languageof Canada that is the languageof the accusedor, if the circumstanceswarrant, who speak both 17 official languagesof Canada." l

'"'· Ibid. at 2153. 1(,1 languages Acl, supra nole 83. s. 5( I). ,,.. Ibid s. 4( I). ,.. LegislativeAssembly, Alberta Hansard, 17 (16 March 1999)at 543 (Nancy MacBeth). "" LegislativeAssembly, Alber/a llansard, vol. II (30 May 2001) at 933 (Mr. Ducharme). 171 Ibid. R. v. Desgagne (13 June 1996), Peace River A 06115443 Tat 3 (Alta. Prov. Cl.); ciled in Canada, Departmentof Juslice and Departmenlof Canadian Heritage,Anno1a1ed lang11age laws of Canada, 2d ed. (Ottawa:Department of Public Works and GovernmentServices, 2000) al 208. 11) Criminal Code, R.S.C. 1985,c. C-46. s. S30(1). 484 ALBERTALAW REVIEW (2004) 42:2

III, THEMATIC OVERVIEW OF INCIDENTAL LANGUAGE PROVISIONS

The historicalsummary of the principallanguage provisions in Albertadispels a common myth.Contrary to popularperception, the provincialgovernment has, over the past century, intervenedsignificantly to legislate languageuse, thereby restrictingpersonal liberty and individual choice. However, this summary, focusing on only four statutes, does not adequately capture the full breadth of this intervention, nor the immense number of provisions.

For this reason, it is appropriateto present a thematic overviewof Alberta's language provisions, modeled on a modem provincial charter, Quebec's Charter of the French language. 174 The Quebec Charter, of course,produced shock waves that reverberatedacross the country. Its impact on Quebec's economic, political, social and cultural sectors was sufficient,according to Guy Rocher,to provokea second Quiet Revolution,more powerful than the first.175 The Quebec Charter's impressivescope is evident in Title 1: Status of the French language, includingnine chapters: The official languageof Quebec; Fundamental language rights; The languageof the legislatureand the courts; The languageof the civil administration;The languageof the semi-publicagencies; The languageoflabour relations; The languageof commerceand business;The languageof instruction;and Miscellaneous.

The thematic overviewof Alberta's languagelegislation uses this same organizational structure in order to demonstrate that Alberta's provisions, like Quebec's, have been strikingly comprehensiveand far-reaching.The chief differenceshave not been in content or breadth,but in timing.The Quebec Charter was adopteddramatically, in one fell swoop, in 1977and in spite of subsequentmodifications, still remainsin force today. The Alberta legislationwas adoptedsecretively, one pieceat a time,over morethan a centuryand its most oppressive provisions are no longer in effect. Such provisions are no longer necessary, having accomplishedtheir desired effect - the creationof a largelyunilingual province.

A. THE OFFICIAL LANGUAGES OF ALBERTA

Section 110 of the North-West Territories Act establishedEnglish and French as the officiallanguages of the province's legislatureand courts.176 In obviouscontradiction, a 1919 amendmentto the lnterpre/ation Act formally recognized English alone as the official languagefor publicrecords. 177In 1988the languages Act finallyresolved this anomalywhen it repealeds. 110,and then validatedall acts and regulationsenacted, printed and published exclusivelyin English.178 Nevertheless,it also granted Frencha very limited official status by permittingits use for oral communicationin the courts and the legislature.179

"' R.S.Q., c. C-11 [Quebec Charter). '" Guy Rocher, "La politique et la loi linguistiqucsdu Quebec en 1977" in Michel Plourde, ed., Le fran,als a11Quebec: 400 ans d'/1/stolreet de vie (Qui!bec:Conscil de la languc rran~aisc,2000) 273 at 283. IU, Supra note 33. Stat11teLaw Amendment Act, S.A. 1919. c. 4, s. 30, amending S.A. 1906, c. 3, s. 7. m"' ,., Supra note 83. . Ibid., ss. 4-5. LEGISLATINGLANGUAGE USE IN AI.BERTA 485

B. FUNDAMENTALLANGUAGE RIGHTS

1. LEGISLATUREAND COURTS

The North-West TerritoriesA cl providedthat"[ e]ither the Englishor the French language may be used by any person in the debates of the Council or LegislativeAssembly of the territoriesand in the proceedingsbefore the courts."180 The languages Act now providesthat "[m]embersof the Assemblymay use Englishand Frenchin the Assembly"181 and that "[a]ny person may use English or French in oral communicationin proceedings before the ... courts."182

2. SCHOOL INSTRUCTION

Since 1988, Alberta's School Act has providedthat "[e]very student is entitled to receive school instruction in English."181 In accordancewith the Canadian Charter of Rights and Freedoms,184 the same Act also declares, since 1993, that a "student who is enrolled in a schooloperated by a Regionalauthority is entitledto receiveschool instructionin French."18s

3. MENTAL HEALTH

In 1972the Mental Health Act recognizedthe right of a person, upon becominga formal patient or the subject ofrenewal certificates,to "be informedof the reason for his admission or the issuanceofrenewal certificatesin simple language"and to be givena writtenstatement describingthe authorityfor the detentionand explainingthe right ofappeal.186 Further,"[i]n the event oflanguage difficulty,the board shall obtain a suitable interpreterand provide the explanationand written statement ... in the languagespoken by the formal patient or his nearest relative."187 Since 1988 a patient may claim this right only after two admission certificatesor two renewal certificateshave been issued.188

C. THE LANGUAGEOF THE LEGISLATUREAND THE COURTS

1. ASSEMBLYDEBATES

The North-West TerritoriesAct recognizedthe right to speak either Englishor French in the legislative assembly.189 In 1987 the Alberta LegislativeAssembly adopted a standing order providingthat "the workinglanguage of the Assembly,its committeesand any official

,.. , Supra note 33, s. 110. '"' LanguagesAct, supra note 83, s. S(I). IMl Ibid., s. 4( I). '"' Supra note 123, s. 9. Part I of the ConstitutionAct, 1982, being ScheduleB to the CanadaAct 1982 (U.K.), 1982, c. 11. ,.,,105 Supra note 123, s. 10(3). S.A. 1972, C. 118, s. 36( I). 111 Ibid., s. 36(3). ,.. Mental Health Act, R.S.A. 2000, c. M-13, s. 14(1). ... Supra note 33. 486 ALBERTALAW REVIEW (2004) 42:2 publicationsrecording its proceedingsshall be in English."190 Since 1988the languages Act has reaffinned the right to use either Englishor French in the legislature.191

2. STATUTESAND RECORDS

The North-West Territories Act required that statutes be printed in both English and French, and that "both those languagesshall be used in the records and journals of such Assembly."192 The languages Act now states simplythat "[a]IIacts and regulationsmay be enacted, printed and published in English"193 and, similarly,that the "StandingOrders and 1 records and journals of the Assemblymay be made, printed and publishedin English."9,1

3. ASSEMBLYELECTIONS

The 1909Alberta Election Act requiredthat the returningofficer in each riding publish a proclamation"in the English language" listing the place and time for nominations,the boundariesof the polling subdivisionsand the places and times for voting.195 In 1980 the phrase "in the Englishlanguage" was suppressed.196

The same Act also made provision for an interpreter:"lfthe person desiring to vote is unableto understandthe Englishlanguage the deputy returningofficer shall enter a remark to that effect oppositehis name in the poll book and may allowhim to retire from the polling placeuntil a competentinterpreter can be procured."197 A secondparagraph added, somewhat disconcertingly:"lfno such interpreteris found or presentshimself at the polling place the voter shall not be allowed to vote."198 A much revised version of the first provision still remains in effect: "A deputy returning officer may appoint in the prescribed fonn an interpreterat a pollingplace to translatequestions and answersconcerning voting procedures for persons not conversant in the English language."199 However,the second paragraph, pennittingthe disenfranchisementof non-English-speakingelectors, was repealed in 1980.200

4. JUDICIALPROCEEDINGS

The North-West Territories Act providedthat either Englishor Frenchmight be used "in the proceedingsbefore the courts."201

The 1914 Alberta Rules of Court required that non-English-speakingwitnesses be providedwith an interpreterduring written interrogatories:

'"" Supra note 7S. Supra note 83, s. S(I). ,.,, Supra note 33. Supra note 29, s. 3. Ibid., s. S(3). ,., S.A. 1909,c.3,s.121. ,... Alberta Election Act, 1980, S.A. 1980,c. 61, s. Sl(I). S11pranote I 9S, s. I 7S. l'JK Ibid., s. I 7S(2). ,... Alberta ElectionAct, R.S.A.2000, c. E-1, s. 78. S11pranote 196,ss. 72, 196. 201 S11pranote 33, s. 110. LEGISLATINGLANGUAGE USE IN ALBERTA 487

Wherea witness does not understandthe Englishlanguage the order or commissionshall, unless otherwise ordered,be executedwith the aid of an interpreternominated by the examineror commissionerand swornby him to interprettruly the questionsto be put to the witnessand his answersthereto, and the examinationshall be taken in English.202

The current Rules of Court include this same provision expressed in almost identical words.203 A similar procedureis followedduring the takingof affidavitswhen it appears that 2 "the deponent does not understandthe Englishlanguage." (),1

The Rules of Court also require that when a request is received from a foreign court the "letter of request for service shall be accompaniedby a translationthereof in the English language,and by two copies of the process or citation to be served, and two copies thereof in the English language." 20s Similarrules apply to the enforcementof foreignjudgments. 206 The Reciprocal Enforcemenl of Judgments Act reiterates the procedure:

Wherea judgment soughtto be registeredunder this Act is in a languageother thnnthe Englishlangm1ge, the judgment or the exemplificationor certifiedcopy of it, as the case may be, shall have attached to ii for all purposesof this Act a translationin the Englishlanguage approved by the Court, and on the approvalbeing given the judgment is deemedto be in the Englishlanguage. 207

Alberta's Languages Act pennits any person to "use English or French in oral communicationin proceedings"before the province's courts.208

5. JURIES

Since 1982 the Jury Act has listed persons who might be exempted from jury duty, including"a person who is unableto understand,speak or read the languagein whichthe trial is to be conducted."209 On these same grounds a party to civil proceedingsis entitled to any number of challenges for cause.210 The Jury Act Regulation, adopted in 1983, provides furtherinformation on the selectionof jurors and notes that "the selectionof a jury panel for a jury of French-speakingpersons may be made from a list, compiled by the sheriff, of French-speakingpersons who have been previouslysummoned for a jury panel."211

llll Alberta Rules o/Courl, 1914, r. 404. Alberta Rules ofCourt, 2001, r. 277. Ibid., r. 303. Ibid .• r. 584(a). Ibid., r. 736.4(1)(a). :01 R.S.A. 2000, c. R-6, s. 4. This provision first appeared in the Reciprocal Enforcement of Judgments Act, /958, S.A. 1958, c. 33, s. 5. For a similar provision, see the Reciprocal Enforcement of Maintenance Orders Act, R.S.A. 2000, c. R-7, s. 14. :oa Supra note 29, s. 4(1). R.S.A. 2000, c. J-3, s. 5( I )(f). This provision first appeared in the Jury Act, S.A. 1982, c. J-2.1, s. 5( I )(f). llU Ibid., s. 12(2)(f). m Alta Reg. 68/83, s. 2(2.1). 488 ALBERTA LAW REVIEW (2004) 42:2

6. POLICING

The Alberta ProvincialPolice, establishedin 1916and then disbanded in 1930, required that all constables be "able to read and write the English language legibly."212

D, THE LANGUAGEOF THECIVIL ADMINISTRATION

I. OFFICIAL DOCUMENTS

The official language clause found in the InterpretationAct, from 1919 until 1980, establishedEnglish as the languageof the provincialadministration: "Where by an enactment public records are required to be kept or any written process to be had or taken, the records or process shall be had or taken in the English language."213

2. REQUESTS FOR SERVICE

The Freedom of Informationand Protectionof PrivacyRegulation pennits an applicant to make an oral request for access to a record if "the applicant's ability to read or write English is limited."214 Presumably,the oral request should also be in English.

3. RESIDENCY CRITERIA

For purposes of vocationaltraining grants, an individualis consideredto be a resident of Alberta if he "lives or intends to live in Alberta" and "has been admitted to Canada for pennanent residence and is pursuing a program of English as a second language."215

4. ELIGIBILITY FOR LOCAL OFFICE

The Town Act, adopted in 1912, required that candidates for election as mayor or councillor be "able to read and write the English language." 216 The 1913Edmonton Charter provided similarly that "[n]o person shall be eligible for election as mayor or alderman, unlesshe is ... able to read and write the Englishlanguage. " 217 The Townand VillageAct and the MunicipalDistrict Act, as amended on 6 April 1945,also established English-language competenceas a conditionfor eligibilityto elected office.218 The 195l CityAct added an oral requirement:"No person shall be qualified to be elected mayor or a member of the council of a city unless, - (a) he can speak, read and write the English language."219 The 1968 MunicipalElection Act repeated the same provision in somewhat modified form: "To be

21! Alberta ProvincialPolice Act, S.A. 1917,c. 4, s. 8. :1., R.S.A. 1970,c. 189, 5. 27. lU Alta. Reg. 200/9S, 5. 4(a). 211 Grants, Donationsand loans Regulation,Alta. Reg.31 S/83, Schedule I, 5. 1(2)(c)(iii). lit, S.A. 1911-1912,c. 2, s5, IS, 72. 217 S.A. 1913, C. 23, s. 21. :rn, Townand VillageAct, R.S.A. 1942,c. I SO,s. 44, as am. by S.A. 1945,c. 41, 5. 4(a); MunicipalDistrict Act, R.S.A. 1942, c. ISi, s. 133,as am. by S.A. 194S,c. 42, s. 20(a). S.A. 1951. C. 9, s. 95. LEGISLATINGLANGUAGE USE IN ALBERTA 489 eligibleto becomea memberof the councila personmust be (a) able to speak, read and write English."220 The languagerequirement was repealed in I 980.221

A 1951amendment to the Irrigation DistrictsAct required that district trustees be "able to read and write in the English language."222 This provisionapparently continued in force until 1999.223

The 1919 Municipal Hospitals Act limited eligibility for election to a hospital board to those"who can read and writethe Englishlanguage. " 224 Althoughthis conditionwas repealed in 1947,225 it resurfacedthe followingyear in the l/oydminster Hospital Act.226

The 1970School Election Act declared that to be "eligible to become a trustee a person must be (a) able to speak, read and write Englishor French."227 This was repealed in 1983.228

5. LOCAL ELECTIONS

The 1951 City Act provided that non-English-speakingvoters might be assisted by an interpreter:"Where a voter does not understandthe English languagethe deputy returning officer may allow an interpreter to translate the oath as well as any lawful question necessarilyput to the voter, and his answers."229 The 1957Lloydminister Charter2 30 and the 1970School ElectionAct 231 includedthe sameprovision. The Local Authorities ElectionAct continuesto pennit the use of an interpreter:"If an elector does not understandthe English language,the deputy [returningofficer] may allow an interpreterto translate the statement as well as any question necessary for the proper purposes of the election put to the elector, and the elector's answers."232

Currently,in order to vote for a Francophoneregional authority, an individualmust be "a Francophone" who has "a child who is enrolled in a school operated by the Regional authority."m The Local Authorities Election Forms Regulation provides sixteen different French language fonns for use in these elections.234

S.A. 1968,c. 66, s. 10. lll MunicipalElection Amendment Act, S.A. 1980,c. 35, s. 5. !!l R.S.A. 1942, s. 22, as am. by S.A. 19SI, c. 45, s. 4(b). lH See IrrigationDistricts Act, S.A. 1999,c. 1-11,s. 35. m S.A. 1919, c. 8, s. 7(2). m MunicipalHospilal.v Amendment Act, S.A. 1947,c. 57, s. 7(a), amendingS.A. 1929,c. 33, s. 31(1). S.A. 1948, c. 19, s. 3S(4)(b). ll? S.A. 1970, C. 101, s. 10(11). m Local Authority E/ectio11Act, S.A. 1983,c. L-27.S,s. 172. ll• Supra note 219, s. 168. l\O Alta. Reg. 296/S7, s. 146(1). Supra note 227, s. 96(1). R.S.A. 2000, c. L-21, s. 72( I). See also MunicipalElection Act, supra note 220, s. I 07( I). School Act, supra note 123, s. 2S6(l}(a). Alta. Reg. 234/2000, Schedule2. 490 ALBERT A LAW REVIEW (2004) 42:2

6. MUNICIPAL PROCEEDINGS

The Rural MunicipalityAct, adopted in 1912, requiredthe municipalsecretary to "keep a full and correct record in the Englishlanguage of the proceedingsof every meetingof the council." 235 On the other hand, the Town and VillageAct, as amendedin 1936, requiredthe secretary-treasurerto "keep a full and correctrecord in the Englishor Frenchlanguage of the proceedings... providedthat, when requiredthe secretary-treasurershall furnisha certified copy of the records in the English language."236 In 1968 a new MunicipalGovernment Act reverted to the earlier English language provision,ordering that the municipalsecretary "attendall regularand specialmeetings of the counciland shall in the Englishlanguage truly record in the minute book, without note or comment,all resolutions,decisions and other proceedings of the council."m In 1994, this responsibilitywas redefined: "The chief administrativeofficer must ensure that (a) all minutesof councilmeetings are recordedin the English language,without note or comment."238

E. THE LANGUAGE OF SF.Ml-PUBLIC AGENCIES

1. COMMUNITY ORGANIZATIONS

For tax exemptionpurposes a linguisticorganization is definedas "an organizationformed for the purpose of promotingthe use of Englishor French in Alberta."239 By comparison,a much broader definitionis given to an ethno-culturalassociation; that is, "an organization formedfor the purposeof servingthe interestsofa communitydefined in terms of the racial, cultural,ethnic, nationalor linguisticorigins or interestsof its members."240

2. ALBERTA CULTURAL HERITAGE FOUNDATION

In 1978,the CulturalDevelopment Amendment Act createdthe AlbertaCultural Heritage Foundationin order "to preservethe culturalwealth of our past includingthe language,art, music and rites ofethno-culturalgroups in Alberta."241

3. REGISTRATION IN A PROFESSION

The Dental AssociationAct, as amended in 1912, set out the requirementsfor a license to practice dentistry in Alberta, including an examinationoffered twice yearly.242 This examinationevidently required competence in the Englishlanguage since, the followingyear, the Legislaturevoted to certify Edmontonresident Paul Karrer, "a fully qualified dental surgeon of Russia,Switzerland and the United States of America"who "does not write the

11, S.A.1911-1912, C. 3, s. 178(1). :u, Supra note 218, s. 91(a). !ll' S.A. 1968, c. 68, s. SS(a). Municipal Gow!rnment Act, R.S.A. 2000, c. M-26, s. 208( I). Comm,mity Organi:ation Property Tax Exemption Regulation, Alta. Reg. 281/98. s. 13(d). !Ill Ibid., s. 13(c). :u S.A. 1978, c. 11, s. 6, amending R.S.A. 1970, c. 82, 10(2). S.A. 1906, c. 22. s. 23. as am. by S.A. 1911-1912,c. 28, s. 8. LEGISLATINGLANGUAGE USE IN ALBERTA 491

English language and therefore cannot comply with the requirementsof section 23 of The Dental AssociationAct." 243

An applicant for registration as a professional member of the engineering,geological or geophysicalprofessions must demonstrate"to the Board of Examinersthat the applicant has a proficiency in the English languagethat is sufficient to enable the applicant to responsibly practice the profession of engineering,geology or geophysics."244

An applicant for registration as a registered nurse,w a certified graduate nurse,246 a licensed practical nurse,247 a psychiatric nurse248 or an acupuncturist249 must, similarly, demonstratea competencein the Englishlanguage that is sufficientto practice the profession.

A candidate for registration as a medical laboratory technologist "must be sufficiently proficient in the English languageto be able to provide professionalservices in English."250

An applicant for registrationas a phannacy intern must provide proof"that English is the applicant's first language, that the applicant has graduated from a training program in phannacy that was offered in an English-speaking institution or that the applicant is sufficientlyfluent in spoken and written Englishto carry on practice as a pharmacyintem." 251

An applicant for registration as a physical therapist, whose first language is not English, must submit "evidence satisfactory to the Registration Committee that the applicant has a comprehension of the English language sufficient to enable him to practice as a physical therapist... m

A candidate for registrationas registeredveterinarian must provide "evidence satisfactory 2 to the [Registration]Committee of his ability to communicate in English." ~J

Applicants for registrationas a professionalforester or a professionalforest technologist, and regulated members applying for pennits, may be required to provide information regarding the "language(s) in which the applicant provides professionalservices." 254

4. PATIENT RECORDS

Acupuncturistsmust maintain complete patient records "in the English language."2H

Act to Authori:e Paul Karrer to Practice Dentistry, S.A. 1913. c. 48. Preamble. Engineering,Geological and GeophysicalProfessions General Rcg11lat1011, Alta Reg. I ;0/99. s. 13(d) Nursing Profession Registratio11Regulation. Alta. Reg 453/83. s. 2(2)(h) Certified Graduate N11rseReg11lation. Alla. Reg. 455/83, s. 2(2)(h). licensed Practical N11rsesRegulation. Alta. Reg. 103/97. s. 2( I )(c). P.rychiatr/cN11r.re.r Reg11latio11, Alta. Reg. 509/87, s. 5(d) Ac11p1111ct11reReg11lutio11, Alta. Reg. 42/811,s. 2(1)(1). Medical Laboratory Tec/1110/ogl.rtsProfess/011 Reg11/aticm, Alta. Reg. 255/200 I. s I 0( I ). Pharmace11ticalProfe.rsion Reg11lation, Alta. Reg. 322/94, s. 9(4)(h)(vi). Physical 71,erupyProfession Ge11cralReg11latio11, Alta Reg. 2911/115.~- 5(2)(c) l'eteri11aryProfe.rsion General Reg11lation,Alta. Reg. .J4/86. s. 2(1) Registered Professional Foresters Regulation, Alta. Reg. 75/2002. s 21 (I )(vii): RegtJteml Professional Forest Tech11ologistsRegulation. Alta. Reg. 76/2002. s 18( I )(vii) Acup11nct11reReg11latio11. Alta. Reg. 42/88. s. 12(1) 492 ALBERTALAW REVIEW (2004) 42:2

5. SOLEMNIZATIONOF MARRIAGE

Since 1965,the MarriageAct has providedthat "[n]o person shall solemnizea marriage when one or both of the parties do not understand the language in which the marriage ceremonyis to be performedunless an interpreteris present to interpretand explainclearly to the party or parties the meaningof the ceremony."256

F. THE LANGUAGE OF LABOUR RELATIONS

I. BASIC FOUNDATIONSKILLS

A basic foundationskills programincludes, by definition,a programmeofinstruction in "Englishas a second language."257

2. CERTIFICATIONIN A TRADE.

The 1912Boilers A ct permitteda candidatetaking the engineeringcertification exam, but who was "unable to speak the Englishlanguage," to employan interpreter,provided that the interpreterhimself was not an engineer.258 Subsequentregulations, however, insistedupon a writtenexamination, except for the fourthclass certificate,and specificallyprohibited the use of an amanuensis.2s 9 Currently,candidates must successfullycomplete grade 11 English or equivalent.260

The 1913Mines Act requiredthat eachapplicant fora miner's certificate"satisfy the board that he is able to read and write in the English language."261 In 1930this requirementwas relaxed and a candidate needed only a "sufficientknowledge of the English language to enablehim to give and understandworking directions and warningsin English."262 The 1955 Coal Mines Act demanded this same (reduced) level of English proficiencyfor both the miner's certificateand the miner's permit.263

In 1910, the Alberta Land SurveyorsAct required that a person admittedas an articled pupil to a land surveyormust havepreviously passed an examinationin Englishgrammar. 264 A 1949amendment eliminated the detailed list of prerequisitesand, instead,authorized the board of examinersto prescribethe requiredsubjects. 265

R.S.A. 2000, c. M-5, s. 10(2). Social Alloll'anceRegulatiot1, Alta. Reg. 213/93, s. 28( I )(b). S.A. 1911-1912,C. 9, s. 47(2). Regulat/011switl, Respectto £11g/neersa11d Firemen, Alta. Reg. 93/57, s. K(c). EngineersRegulations, Alta. Reg. 319/7S, ss. 10(4), I l(S). S.A. 1913, c. 3, s. 22. Coal Mines RegulationAct, S.A. 1930, c. 24, s. 42(b). S.A. 19SS,c. 3S, ss. 72(c), 73(b). :,.... S.A. 1910,c. 2, s. 22(1). Alberta La11dS11n•eyors Act, R.S.A. 1942, c. 287, s. 22. as am. by S.A. 1949,c. 9, s. I. LEGISLATINGLANGUAGE USE IN ALBERTA 493

An applicantseeking admission to an examinationfor certificationas a tool and die maker "shall provide translations into the English language, acceptable to the Director, of credentials in a languageother than English."266

3. WORKPLACE REQUIREMENTS

A 1924 amendment to the Boilers Act provided that "[e]very person engaged in the operationofa steam boiler shall speak the same languageas the engineer in charge."267 This provision last appeared in 1957, in a slightly revised form: "Every person engaged in the operation of a steam plant subject to these regulationsshall speak the same languageas the engineer in charge of the shift."268

The Coal Mines Regulations Ordinance, carried over into Alberta from the North-West Territories,ordered that "[n]o person unable to speak and read Englishshall be appointedto or shall occupyany positionof trust or responsibility." 269 Whenthe provinceadopted its own Coal Mines Regulation Act in 1930,this provisionwas no longer included.270

4. EMPLOYMENT RECORDS

In 1936 the Male Minimum Wage Act required that "[e]very employershall keep in his principalplace of business in the Provincea true and correct record in the English language of the wages paid to and the hours worked each day by each of his employees,together with a register in the English languageof the names, nationalities,ages and residentialaddresses of all his employees." 271 This same requirementalso appeared in the 1936 Hours of Work Acr 72 and the 1947Alberta Labour Act.213

G. THE LANGUAGEOF COMMERCEAND BUSINESS

1. COMMERCIAL SIGNS

A 1917statute requiringthe City of Calgaryto adopt an early closing policy also ordered that exempted shops "expose in two prominent places in the front door, and in the front windowa card not less than two feet square on which there shall be printed in English, in type of not less than one inch high, the followingwords only: 'This shop is closed by law, except for the sale of (here state the goods, or any of them, mentioned in this

2", Tool and Die Maker TradeRegulation, Alta. Reg. 346/84, s. 4(4). 2(,1 R.S.A. 1922, c. 191, s. 52, as am. by S.A. 1924,c. 3, s. 38(f). :,,1 Regulationswith Respect to Engineersand Firemen,Alta. Reg. 93/57, s. R(a). U,'I Coal Mines RegulationsOrdinance, C.O.N.W.1'. I 905, c. 16, r. 34. no Supra note 262. S.A. 1936, c. 76, s. 14(1). S.A. 1936,c. 5, s. 13(1). S.A. 1947, c. 8, s. IO(I). 494 ALBERTALAW REVIEW (2004) 42:2 subsection)."'274 In 1923the same provisionwas applied to the City of Edmonton275 and in 1951to all Alberta cities, althoughthe English-languagesign was now to be "not less than twenty-twoinches by twenty-eightinches." 276 The provisionwas repealed in 1968.277

2. COMPANYREGISTRATION

The 1929Companies Act advisedforeign companies that"[ w]here any document required to be filed under this section is not in the English language,the Registrar may require a translationthereof, notariaJJycertified." 278 A 1968 amendmentextended this provisionto "extra-provincial"companies. 279 It currentlyreads: "If all or any part of the charter is not in the English language, the Registrar may require the submission to the Registrar of a translationof the charter or that part of the charter, verified in a mannersatisfactory to the Registrar, before the Registrar registers the extra-provincial corporation."280 The CooperativesAct includesan equivalentprovision. 281

3. CORPORATE NAMES

According to the InterpretationAct, a corporation that has "a name consisting of an Englishand French form or a combinedEnglish and Frenchform" is vested with the power "to use either the English or French form of its name or both forms."282 The Business CorporationsAct similarlyrecognizes that the name of a corporation"may be in an English form or a French form or in a combinedEnglish and French form and the corporationmay use and may be legallydesignated by any of those fonns."283 The CooperativesAct,m the InsuranceAct, 285 and the loan and TrustCorporations Act, 286 all includesimilar provisions.

An Alberta registered corporation,cooperative or society may include in its name any letter of the English languagealphabet, any Arabic numeraland any of twenty-threelisted marks and symbols.287 On the other hand, a credit union or a loan and trust corporationis permittedthe "letters of the alphabet used in the English or French language"as well as

Acl lo amend the Acts and Ordinancesconslil111ing the Charterof the City of Calgary,and lo validate CertainBy-laws of the said city, S.A. 1917,c. 4S, s. 19(4) [emphasisin original). Act lo amend tireActs consl/1111/ngThe EdmontonCharier and lo validateBy-law No, 2, 1923,of the City of EdmonIon, S.A. 1923,c. 63, s. 6. See alsoAn Acllo Amendthe Acts ConslllulingTl,e Edmon Ion Charierand lo ValidateCertain By-laws Authorizing the Borrowingof Money,S. A, 1939,c. I 02, s. 4. 17(, City Act, supra note 219, s. 381. MunicipalGovernment Act, supra note 237, s. 433. S.A. 1929,c. 14, s. 13S(3)(c). An Act to amend the CompaniesAct, S.A. 1968,c. 13, 2(2), amendingR.S.A. 19SS,c. S3, s. 148(S). llll Business CorporationsAct, R.S.A.2000, c. B.9, s. 280(3). S.A. 2001, c. 28.l, s. 369(3). R.S.A. 2000, c. 1-8,s. 16(e). Supra note 280, s. 10(6). Supra note 281, s. 16(2). R.S.A.2000, c. 1-3,s. 21(2). R.S.A.2000, c. L-20, ss. 20(2), 34(3). ll1 BusinessCorporations Regulation, Alta. Reg. 118/2000.s. 11(I); CooperativesRegulation, Alta. Reg. SS/2002,s. 10(1);Societies Regulation,Alla. Reg. 12212000,s. 10(1). LEGISLATINGLANGUAGE USE IN ALBERTA 495

"punctuation marks, symbols or other marks in common usage in the English or French language." 288

Corporationsmust include, as the last part of their name, one of a select numberof English or French words, or abbreviations: "Limited," "Limite," "Incorporated," "Incorpore," "Corporation, "Ltd.," "Lte," "Inc," or "Corp."289 Similarly, cooperatives must include an appropriateEnglish or Frenchword (such as "cooperative,""co-operative" or "cooperative") in their names,290 as must trust companies ("trust" or "fiducie").291 Only an incorporated insurancecompany may use the words "insurance company" or "insurance corporation" or "the French equivalents of those words" in its name.292

The Business CorporationsA ct declares that "a corporationmay, outside Canada, use and may be legally designated by a name in any language fonn."293

4. COMPANY REPORTS

The 1929 Companies Act required that all public companies file an annual report, including an audited balance sheet, "and if any such balance sheet is in a foreign language, there shall also be annexed to it a translation thereof in English, certified in the prescribed manner to be a correct translation." 294 The phrase "not in English"now replaces "in a foreign language." 295

5. WILLS

In 1976 Alberta enacted the rules regarding the so-called "international will," providing that a will "may be written in any language,by hand or by any other means."296 Nevertheless, when proving the signing of a will, Alberta's Surrogate Rules require that "[i]f a will is written in a languageother than English,the applicant must give an affidavit in Fonn NC IO verifying the will's translation into English."297 Further, if the deceased "did not fully understand English" at the time the will was made, the applicant must satisfy the court that the deceased appeared to fully understand the will."298

lU Credit Union (Ministerial)Regulation, Alla. Reg. 250/89, s. 6(1); loan and Trust Corporations (Ministerial}Regulation, Alta. Reg. 172/92,s. 6( I )(a). Business CorporationsAct, s11pranote 280, s. 10(1). l'JU Cooperatli·esAct, mpra note 281, s. 16(2). loan and Trust CorporationsAct, s11pranote 286, s. 20(1)(e). /ns11ranceAct, supra note 28S, s. 213. S11pranote 280, s. 280(3). S.A. 1929,C. 14, s. 117(3). CompaniesAct, R.S.A. 2000, c. C-21, s. 162(3). Attorney GeneralStatutes AmendmentAct, S.A. 1976,c. 57, Schedule,Annex. s. 3(3). See also Wills Act, R.S.A. 2000, c. W-12, Schedule,Annex, s.1(3). Alta. Reg. 130/95,s. 18. lYK Ibid., s. 17. 496 ALBERTALAW REVIEW (2004) 42:2

H. THE LANGUAGEOF INSTRUCTION

1. INSTRUCTIONIN ENGLISH

The North-WestTerritories' School Ordinancerecognized English as the sole language of instruction:"All schoolsshall be taught in the Englishlanguage but it shall be pennissible for the board of any districtto cause a primarycourse to be taught in the Frenchlanguage. " 299 The 1988School Act repealed this obligation,and replaced it with an entitlement:"Every student is entitled to receive school instructionin English."300

2. INSTRUCTIONIN FRENCH

The North-WestTerritories' School Ordinance permitted the teachingof a primarycourse in the French language.301 A 1964 amendment, however, provided for French language instruction"in grades one to nine inclusivebut in that case (a) in grades one and two, at least one hour a day shall be devoted to instructionin English,(b) in grade three, not more than two hours a day shall be devoted to instruction in French, and (c) in grades above grade three, not more than one hour a day shall be devoted to instructionin French."302 Four years later a further amendmentpermitted French language instruction,in grades three through twelve,for up to "50 percent of the total periodof time devotedto classroominstruction each day."303 In 1976 the Minister of Education effectively increased the French language allowanceto 80 percent of class time by reducingthe Englishminimums. 304

In 1989the Ministerof Educationformally recognized French immersionas a program distinct from Francophoneeducation, although both had the same hourly minimums for English language instruction.305 A decade later he repealed both the French language ImmersionRegulation 306 and the French language Regulation.307

3. INSTRUCTIONIN OTHER LANGUAGES

The North-WestTerritories' School Ordinancepennitted instructionin a languageother than English(or French),but this could only be done after normal school hours and at the parents' expense.308 However,in 1971an amendmentprovided that a "board may authorize (a) that French be used as a languageof instruction,or (b) that any other language be used as a language of instruction, in addition to the English language, in all or any of its schools."309 In 1979the MinisterofEducationruled that in such cases the board was required to "ensure that English is used as the languageof instructionfor not less than 50% per day

l'J'J Supra note 84, s. 136. '"' S.A. 1988,c. S-3.1, s. 4. See also School Act, R.S.A. 2000, c. S-3, s. 9. "'' S11pranote 84. Wl School AmemdmentAct, /96./, supra note 98, s. 43, amendingR.S.A. 19SS,c. 297, s. 386. \n\ School AmendmentAct, /968, supra note IOI, s. 24, amendingR.S.A. 19SS,c. 297, s. 386. '"' French language Regulations,supra note 107, s. 2. French language ImmersionRegulation, Alla. Reg. 36/89. 111(, EducationRepeal Regulation,Alla. Reg. IS7/98. )07 Repeal Regulation,Alta. Reg. 222/99. 1()1l S11pranote 84, s. 136(2),(3 ). SchoolAmendment Act, 1971,supra note 102,s. 18, amendingR.S.A. 1970,c. 329, s. ISO. LEGISLATINGLANGUAGE USE IN ALBERTA 497 for each pupil."310 This Regulation was repealed in 1998.311 The School Act now declares, quite simply, that a "board may authorize the use of French or any other language as a languageof instruction." 312

IV. CONCLUSION

Fundamentalimportance notwithstanding, Alberta's languageprovisions have been widely ignored. Indeed, many still believe that Alberta has seldom legislated language use. This misperceptionis rooted in a neo-liberalideology. (Would a supposedlynon-interventionist governmentregulate its citizens' speech?) It is nourishedby a discriminatorysocial impact. (Does the English-speakingmajority care about measuresthat affect only a small linguistic minority?) It is maintained by ad hoc scattergun law-making.(Who will pick out the incidentalprovisions buried in a huge cauldronof legislation?)

This article has uncovered an extensive body of language law buried in a century of statutoryand regulatoryprovisions. (And it mayhave only scratchedthe surfacewith respect to orders-in-counciland regulations.)During the first severaldecades, Alberta legislatedto ensure the use of English in a wide variety of domains, including government,justice, education,business and commerce.This legislativeeffort is impressivebut troubling,given the longstanding and seemingly unthreatened status of the English language. Pierre Coulombemakes the point:

The rationale for limiting language rights outside Quebec is assimilation to the English majority on grounds of cost-efficiencyand/or cultural imperialism, for which there could be no validjustification. What I want to emphasize is that the situation is different outside Quebec: different of course lx.-causecommunal rights for French Canndinnsarc a question of survival, making their violation all the more morally rcprc:hensihle,but different also because their violation is a cnse of plain repression against French-Canadianminorities rather than the result of the exercise of some communal English-Canndinnright. 313

In recent years, Alberta has exhibiteda greater tolerancefor the French languageand for other minority languages,particularly in education. Prohibitionhas turned to acceptance. Judicial activism has created a growing system of French language schools, governed by French language school boards. Economicglobalization has contributed to an increasing presenceof French languagecorporate names, atop French languagemultinationals. Social development has encouraged a greater tolerance for French language communicationin public institutions,including the legislatureand the courts. Unfortunately,after decades of repressivelanguage provisions, proportionately few non-English-speakershave survivedto benefit from these changes.

1111 lns1r11cl/onIn a language other than English or French Reg11/alion,Alta. Reg. 74179,s. 2( I). HI Ed11calio11Repeal Reg11/atio11,s11pra note 307. 112,,, Supra note 123, s. 11(1). Pierre A. Coulombe, language Rights in French Canada (New York: Peter Lang, 1997) at 129.