I am grateful for the many long and fruitful discussions I have had about these issues with Carol Rogerson, Robert Sharpe and Les Green. I would also like to express my appreciation to the Connaught Programme at the University of Toronto and the Human Rights Fund of the Department of Justice for funding the book out of which this paper arises, and to Simon Coval for his able research assistance.

1. R.v. Forest(1976). 74 D.L.R. (3d) 704 (Man. Co. Ct., St. Boniface): Forest v. A.G. Manitoba, [1979]4 W.W.R. 229 (Man. C.A.); A.G. Manitoba v. Forest. [1979] 2 S.C.R. 1032. See also Petlant v. Hebert, reported in the newspaper. Le Manitoba. March 9, 1892 and reproduced in Magnet. “Court Ordered Bilingualism” (1981). 12 R. G.D. 237. at 242, and Bertrand v. Dussault. unreported, January 9,1909 (Man. Co.Ct., St. Boniface), reproduced in the dissenting opinion of Monnin, J.A. in Re Forest and Registrarof Court of Appeal of Manitoba (1977), 77 D.L.R. (3d) 445 at 458.

2. 33 Vict. c.3, ratified by the British North America Act. 1871, 34-35 Vict. c. 28, s. 6. renamed Constitution Act. 1871 in the Constitution Act. 1982.S.53. The Manitoba Act, 1870 is now entrenched in the Constitution of Canada by virtue of s. 52(2)(b) of the Constitution Act. 1982.

3. Magnet canvassed the possible responses to this problem in "Validity of Manitoba Laws After Forest: What is to be Done" (1980). 10 Man. L.J. 241.

4. Bilodeau v. A.G. Manitoba. [ 1981 ] 5 W.W.R. 393.See also R.v. Smith. 11980] 3 W.W.R. 591 (Man. Co. Ct.)

5. Meanwhile negotiations were underway with the provincial government to abandon this appeal in return for a constitutional amendment that would have extended provincial government services in French. This proved politically impossible, and the appeal proceeded. Bilodeau v. The Attorney General of Manitoba, [1986] 1 S.C.R. 449.

6. R.S.C. 1970, c. S-19, s. 55.

7. This use of the reference procedure required the Court to consider the impact of the violation of s. 23 in the abstract without benefit of an actual fact situation raising the issue. In view of the fact that Bilodeau was awaiting decision, it is arguable that the procedure was misused in this case. As I shall argue later, the generality of the questions put to the Court may well have influenced its approach.

8. (1985), 19 D.L.R. (4th) 1 ( S.C.C), hereafter referred to as the Manitoba Language Reference.

9. IIbid., at 22.

10. Jennings, W.I., The Law and the Constitution(5th ed.1959),at432.Google Scholar

11. Wade, E.C.S. and Phillips, G.G., Constitutional and Administrative Law(9th ed.1977),at89.Google Scholar

12. Manitoba Language Reference, supra note 8, at 21.

13. IIbid., at 23.

14. IIbid., at 24.

15. IIbid., at 25.

16. Calabresi, G., A Common Law for the Age of Statutes (1982). Calabresi refers only to the American context, but the phenomenon is common to the Anglo-American world.Google Scholar

17. All federal statutes, of course, including the Criminal Code, would continue to be valid and effective.

18. These ‘saving doctrines’ have been considered much more thoroughly in Gibson, D. and Lercher, K., “Reliance and Unconstitutional Laws: The Saving Doctrines and Other Protections”(1986), 15Man. L.J. 305.Google Scholar

19. Manitoba Language Reference, supra, note 8 at 28.

20. Ibid., at 28–9.

21. Dicey, A.V., Introduction to the Study of the Law of the Constitution,(10th ed.1959), at 188.Google Scholar

22. Ibid.

23. Ibid., at 193.

24. Ibid.,at l95.

25. Ibid., at 190–194. One might even argue that the Supreme Court has adopted a position very like Dicey’s on the importance of judicial enforcement of fundamentalrights. The Court described its responsibilities as follows: “The constitutional entrenchment of a duty on the Manitoba Legislature to enact, print and publish in both French and English in s. 23 of the Manitoba Act, 1870 confers upon the judiciary the responsibility of protecting the correlativelanguage rights of all Manitobans including the Franco-Manitoban minority. The judiciary is the institution charged with the duty of ensuring that the government complies with the Constitution”. Manitoba Language Reference, supra, note 8, at 19.

26. See for example. Wade’s “Introduction” to the10th edition of Dicey, supra, note 21. at cviiff; Jennings, supra, note 10, at 306ff; Fuller, L., The Morality of Law,(Revised Edition,1969);Google Scholar Raz, J., “The Rule of Law and its Virtue”inThe Authority of Law(1979).Google Scholar

27. The Court did refer to Dicey’s conception, but it played norole in the judgment. Manitoba Language Reference, supra, note 8 at 23.

28. Raz, supra, note 26, at 211. It might be noted that while the Court cited Raz as an authority for the importance of the rule of law, it failed to takeaccount of this aspect of his theory.

29. Fuller, supra, note 26, at 153.

30. Hayek, F.A.. Law,Legislation and Liberty, Vol.1. Rules and Order (1973), at 141–143. and Vol. II. The Mirage of Social Justice (1976).Google Scholar

31. Fuller, supra, note 26. Ch. II.

32. Raz, supra, note 26. at 214–218.

33. Fuller, supra, note 26. at 79.

34. Raz, supra, note 26. at 214.

35. Fuller, supra, note 26. at 210.

36. Forest v.A.G. Manitoba, supra, note 1.

37. Hart, H.L., The Concept of Law(1961), at 171.Google Scholar

38. The many kinds of cases which raise this problem and have arisen under the American constitution have been catalogued by O.P. Field, The Effect of an Unconstitutional Statute (1977, originally published in 1935). For some reason this sort of problem seems to have arisen or been adjudicated upon much more frequently in the United States than in Canada. A similar problem arises in administrative law when an official acts outside the scope of his jurisdiction or fails to follow required procedures so that, technically, his acts are invalid, but others have relied on his authority. Here too the official’s act is frequently treated as though it were valid. See deSmithsJudicial Review of Administrative Action (4th ed. J.M. Evans, ed. 1980), at 142–146; 151–155.

39. Field, supra, note 38, at 198-204.

40. Ibid., at 65–72.

41. F.W. Maitland, Equity (A.H. Claytor and W.J. Whittaker, eds. 1949) at 9, 18; Hanbury and Maudsley. Modern Equity (12th ed. J. E. Martin, ed. 1985), at 17ff; Snell’s Principles of Equity (28th ed. P.V. Baker and P. St. J. Langan, eds. 1982) at 30. The Supreme Court recognized this character of the de facto doctrine: “ ... the doctrine does not give effect to unconstitutional laws. It recognizes and gives effect only to the justified expectations of those who have relied upon the acts of those administering the invalid laws and to the existence and efficacy of public and private bodies corporate, though irregularly or illegally organized”. Manitoba Language Reference, supra, note 8, at 28.

42. P.L.R. 1956 W.P. 598.

43. Texas v. White(1868), 74 U.S. 700; Horn v. Lockhart (1873), 84 U.S. 570.

44. [1979] 2 S.C.R. 1016.

45. Supra, note 37.

46. Supra, note 27.

47. Ibid., at 89–96.

48. See for eg., Raz, J., The Authority of Law(1979), at 9–94;Google Scholar MacCormick, N., H.L.A. Hart(1981),at Ch. 6.Google Scholar

49. Rawls, J., “Two Concepts of Rules,”Theories of Ethics(P. Foot, ed.1968), at 144.Google Scholar

50. Manitoba Language Reference, supra, note 8. at 20-21, my emphasis. See also Société Asbestos Limitée c. Société Nationale de I’Amiante et P. G. de la Province de Quebéc, [1979] C.A. 342 (Que.C.A.).

51. It is interesting to note that the Manitoba Court of Appeal did not take this approach in Forest v.A.G. Manitoba, supra, note 1, in which the Official Language Act was in issue. The court declared the legislation inoperative rather than invalid.

52. For a different, but I think compatible, argument that the courts should not regard Charter litigation as exclusively raising the question of the validity of legislation, see Côté, “La préséance de la Charte canadienne des droits et libertés” (1984), 18 R.J. T. 105, and Rogerson, “The Judicial Search for Appropriate Remedies Under the Charter: The Examples of Overbreadth and Vagueness” Charter Litigation (R.J. Sharpe, ed. 1987).

53. It is true, of course, that the constitutionality of Manitoba's Official Language Act was challenged twice around the turn of the century, in Pellant v. Hebert, and Bertrand v. Dussault, supra, note 1. However, these County Court decisions were ignored by the authorities, and despite the fact that the legislation was declared invalid, were never appealed by the government.

54. For an argument that Charter adjudication is in danger of falling into the same trap see Rogerson, supra, note 52.

55. I owe this point to Carol Rogerson.

56. Constitution Act, 1982, emphasis added.

57. According to the 1982 census, there are 52,560 Manitobans whose mother tongue is French, a mere 5% of the population of the province.

58. (1982), 140D.L.R. (3d) 363 (Sask. Q.B.).

59. Ibid., at 368.

60. (1984). 48 O.R. (2d) 395 (Ont. C.A.).

61. Edwards Books and Art Ltd. v.R. [1986] 2 S.C.R. 713.

62. Wilson J., dissenting, agreed with the Court of Appeal that the legislation was unconstitutional, but preferred to remedy this by severing the provisions of the legislation restricting the scope of the exemption already provided for those who celebrate Saturday as a religious holiday. In doing so. Her Ladyship did not reject the Court of Appeal approach as inappropriate, but merely preferred severance on substantive grounds. It should be clear that this option will not always be available. If the legislation had not provided some exemption itself, the Court of Appeal approach would have been the only means of protecting the right to religious freedom.

63. [1975] 2 S.C.R. 182.

64. Ibid., at 193.

65. For a similar argument in the context of Charter violations see Pilkington, M.L., “Monetary Redress for Charter Infringement,” in Charter Limitation(R.J. Sharpe. ed.1987), at 307, at ,and Rogerson, supra, note 52Google Scholar

66. For this general characterization of rights I am relying on the formulation of Raz, “On the Nature of Rights“ (1984), 93 Mind 194, and The Morality of Freedom (1986), Ch. 7. This definition is designed to encompass as many substantive accounts of rights as possible.

67. Hereafter I will refer to the language provisions of the Manitoba Act and Charter together as the constitutional provisions regarding language or as the language provisions of the Constitution.

68. I argued above that this is the real meaning of a decision to ‘strike down’ legislation.

69. This argument is analogous to that which underlies the American doctrine of “unconstitutional conditions”. The American courts have held that the government cannot condition the receipt of its benefits on the nonassertion of a right to which the citizen would otherwise be constitutionally entitled. Sherbert v. Verner (1967) 374 U.S. 398; Speiser v. Randall (1958), 357 U.S. 513; Frost & Frost Trucking Co. v. Railroad Commission of California (1926), 271 U.S. 583. In the Manitoba case the same argument can be applied at the level of remedy as a reason why the Court should favour one remedy over another – to do otherwise is to punish someone for asserting a constitutional right.

70. (1985), 13 C.R.R. 64(S.C.C).

71. Ibid., at 80. This seems to imply that the s. 24 remedial powers can be invoked only after a decision has been made as to whether s. 52 renders the legislation invalid in whole or in part and then only against the backdrop of that conclusion. On the other hand Dickson C.J. does contemplate the possibility of a court declaring a constitutional exemption to otherwise valid legislation (at 81). This seems to acknowledge that there can be some constitutional violatons which do not render legislation invalid.

72. Marx, H., “Entrenchment, Limitations and Non-Obstante,” in The Canadian Charter of Rights and Freedoms: Commentary(W. Tarnopolsky and G.-A. Beaudoin. eds. 1982), at 71; Côté, supra, note 52.Google Scholar

73. 1865 (U.K.), 28 & 29 Vict., c. 63.

74. See Côté, supra, note 52; Rogerson, supra, note 52.

75. For another example of a judgment in which the court seemed to think that invalidation was necessary because anything more modest was characterized as automatically inadequate see Re Vella and The Queen (1984), 14 C.C.C. (3d) 513 (Ont. H.C.).

76. At least some lower courts have been willing to use mandatory injunctions to protect constitutional rights. See, for example, Van Mulligan v. Saskatchewan Housing Corporation (1982). 23 Sask. R. 66 (Q.B.) and Lévésqu v.A.G. of Canada (1985), 25 D.L.R. (4th) 184 (F.C.T.D.). In Marchand v. Simcoe County Board of Education (1986), 29 D.L.R. (4th) 596 (Ont. H.C.J.), Sirois J. went so far as to grant a mandatory order requiring the school board to provide facilities and funding necessary to equalize the quality of education between the English and French secondary schools in Penetanguishene and in particular to provide industrial arts and shop programmes in the French school. Under the circumstances this seems to have been the only remedy likely to have been effective, and this is exactly the context in which I think affirmative remedies are most appropriate. This decision, however, has been appealed.

77. For some evidence of judicial reticence on this issue see the comments by Estey, J., in “The Law of Remedies - An Overview,”[1981]Law Society of Upper Canada Special Lectures, at 18–19.Google Scholar

78. A remedy in the form of a mandatory order in this case also raises such thorny issues as that of who the order should be issued against, and the relevance of Crown immunity in this context. The duty under s. 23 is imposed upon the legislature itself. Should the legislature be the object of the order? Further, although the doctrine of Crown immunity has been significantly whittled away in Canada, at least in the constitutional context (See R.J. Sharpe, Injunctions and Specific Performance (1983). at 167-179). this has been largely in cases in which an agent of the Crown was acting under ultra vires, and therefore invalid, legislation. It has yet to be authoritatively decided whether Crown immunity can be claimed if the legislation is held to be in violation of the constitution, but not invalid. Although I would argue that the Crown ought not to be able to claim immunity in any constitutional case, because s. 52 makes the Constitution the supreme law of Canada (this argument was recently accepted in Lévésque v. AG. of Canada, supra, note 76). this issue does add an extra complexity to the argument for a mandatory order in this case.

79. Gibson, D. refers to this as the technique of“reading out,” in The Law of the Charter: General Principles(1986), at 188–9. See also Rogerson, supra, note 52, at 274ff.Google Scholar

80. Supra, note 60.

81. Ibid., at 430.

82. Supra, note 70, at 81. The clearest authority for this approach is R.v. Seaboyer; R.v. Gayme(1987), O.A.C. 345 (Ont. C.A.), reported after this article was in proof.

83. I say governments rather than legislatures because in the end the language in which legislation is enacted is under the control of the government of the day.

84. This argument is contrary to the approach taken by McDowell, G.L., Equity and the Constitution, The Supreme Court, Equitable Relief, and Public Policy(1982.McDowell seems to identify all such equitable reasoning with judicial activism which he is against. To fully deal with this position would require a comprehensive theory of judicial review, which is beyond the scope of this paper. Suffice it to say that I do not think equitable reasoning allows judges free rein to decide cases as they please, as McDowell seems to, nor would I characterize its use as judicial activism.Google Scholar

85. This tendency has been much lamented. See Pound“The Decadence of Equity,”(1905). 5Col. L. Rev. 20. and Allen, C.K., Law in the Making (6th ed. 1958), at 398-404.Google Scholar

86. C. St. Germain, Dialogue Between a Doctor of Divinity and a Student of the Laws of England (18th ed. W. Muchall, ed. 1815, originally published in 1523); E. Hake. Epieikeia, A Dialogue on Equity in Three Parts (D.E.C. Yale, ed. 1953), especially Part One: “Of Equity in General”; P. Vinogradoff, “Reason and Conscience in Sixteenth-Century Jurisprudence” (1908), 24 L.Q.R. 373; Snell’s Principles of Equity, supra, note 41, at 8; P.H. Pettit, Equity and the Law of Trusts (5th ed. 1984); Sheridan, L.A. and Keeton, G.W., The Nature of Equity(1984).Google Scholar

87. F.W. Maitland, supra, note 41, at 29, 54.

88. Hanbury, H.G., Essays in Equity(1934) at 45. See also Snell’s Principles of Equity, supra, note 41, at 8.Google Scholar

89. The Queen m Right of Canada v. Saskatchewan Wheat Pool(1983), 23 C.C.L.T. 121 (S.C.C.).

90. I owe this observation to David Mullan.