Documents on the Controversy Surrounding the Language
of Commercial Signs in Quebec (Bill 178) December 1988
Extracts
from the Decision of the Supreme Court of Canada On the Language of Signs in Quebec
(Ford, Brown et al. V. Attorney-General of Quebec) As summarised from the
Montreal Gazette, Friday, December 16, 1988, pp. B 4-5 [Note
from the editor: the unanimous decision was rendered by Justices Brian Dickson,
Jean Beetz, William McIntyre, Antonio Lamer and Bertha Wilson; only a small part
of the decision, which covers 85 pages of text, is reproduced here. Titles in
boldface are my own] What
are the issues at hand? "The
principal issue of this appeal is whether sections 58 and 69 of the Quebec Charter
of the French Language, which require that public signs and posters and commercial
advertising shall be in the French language only and that only the French version
of firm name may be used, infringe the freedom of expression guaranteed by Section
2b of the Canadian Charter of Rights and Freedoms and Sect. 3 of the Quebec Charter
of Human Rights and Freedoms. There is also an issue as to whether Sect. 58 and
69 of the Charter of the French Language infringe the guarantee against discrimination
based on language in Sect. 10 of the Quebec Charter of Human Rights and Freedoms. Does
freedom of expression include freedom to express oneself in the language
of ones choice? "The
conclusion of the Superior Court and of the Court of Appeal on this issue is correct"
Language is so intimately related to the form and content of expression that there
cannot be true freedom of expression by means of language if one is prohibited
from using the language of ones choice. Language is not merely a means or
medium of expression; it colors the content and meaning of expression. It is,
as the preamble of the Charter of the French Language itself indicates,
a means by which the individual expresses his or her personal identity and sense
of individuality [...] "The
respondents seek to be free of the state-imposed requirement that their commercial
signs and advertising be in French only, and seek the freedom, in the entirely
private or non-governmental realm of commercial activity, to display signs and
advertising in the language of their choice as well as that of French [Note from
the editor: a parallel case involving a printer named Allan Singer, who claimed
the right to put signs up in English only, was dismissed by the Supreme Court
which held that the requirement to put French on signs in Quebec was a restriction
on ones freedom that they deemed reasonable given the situation of Quebec
and the worthwhile desire to protect the French language. Ford, Brown and al.
always claimed the right to use English as well as French on their signs; they
never denied the right of the National Assembly of Quebec to require French].
Manifestly the respondents are not seeking to use the language of their choice
in any form of direct relations with any branch of government and are not seeking
to oblige government to provide the many services or other benefits in the language
of their choice. In this sense the respondents are asserting a freedom to express
oneself in the language of ones choice in an area of non-governmental activity,
as opposed to a language right of the kind guaranteed in the Constitution. The
recognition that freedom of expression includes the freedom to express oneself
in the language of ones choice does not undermine or run counter to the
special guarantees of official language rights in areas of governmental jurisdiction
or responsibility. Do
freedom of expression guarantees extend to commercial expression? "It
is apparent to this Court that the guarantee of freedom of expression [...] cannot
be confined to political expression, important as that form of expression is in
a free and democratic society. [...] Political expression is only one form of
a great range of expression that is deserving of constitutional protection because
it serves individual and societal values in a free and democratic society. [...] "Given
the earlier pronouncements of this Court to the effect that the rights and freedoms
guaranteed in the Canadian Charter should be given a large and liberal interpretation,
there is no sound basis on which commercial expression can be excluded from the
protection [of the Charter]. "Over
and above its intrinsic value as expression which, as has been pointed out, protects
listeners as well as speakers plays a significant role in enabling individuals
to make informed economic choices, an important aspect of self-fulfilment and
personal autonomy. The Court accordingly rejects the view that commercial expression
serves no individual or societal values and for this reason is undeserving of
any constitutional protection. Is
French threatened, and would this justify the restriction on the freedom of expression? [In
this section, and others after, the Court refers to visage linguistique.
This expression is always used in French. It is commonly used in Quebec to discuss
the linguistic situation. It is difficult to translate precisely, hence the use
of the French expression, even in an English text. The literal meaning would be
the French face of Quebec. After
discussing the various studies that have been submitted to show the threatened
position of the French language, the Court continues:] "The
causal factors for the threatened position of the French language that have generally
been identified are: (a) the declining birth rate of Quebec francophones resulting
in a decline in the Quebec francophone proportion of the Canadian population as
a whole; (b) the decline of the francophone population outside Quebec as a result
of assimilation; (c) the greater rate of assimilation of immigrants to Quebec
by the anglophone community of Quebec; and (d) the continuing dominance of English
at the higher levels of the economic sector. These factors have favored the use
of the English language despite the predominance in Quebec of a francophone population.
Thus, in the period prior to the enactment of the legislation at issue, the visage
linguistique of Quebec often gave the impression that English had become
as significant as French. This visage linguistique reinforced
the concern among francophones that English was gaining in importance, that the
French language was threatened and that it would ultimately disappear. It strongly
suggested to young and ambitious francophones that the language of success was
almost exclusively English. It confirmed to anglophones that there was no great
need to learn the majority language. An it suggested to immigrants that the prudent
course lay in joining the anglophone community. [...] "The
materials establish that the aim of the language policy underlying the Charter
of the French Language was a serious and legitimate one. They indicate the
concern about the survival of the French language and the perceived need for an
adequate legislative response to the problem. Moreover, they indicate a rational
connection between protecting the French language and assuring that the reality
of Quebec society is communicated through the visage linguistique. "The
materials do not, however, demonstrate that the requirement of the use of French
only is either necessary for the achievement of the legislative objective or proportionate
to it. That specific question is simply not addressed by the materials. Indeed,
in his factum and oral argument the Attorney general of Quebec did not attempt
to justify the requirement of the exclusive use of French. He concentrated on
the reasons for the adoption of the Charter of the French Language [...].
The Attorney General of Quebec relied on what he referred to as the general democratic
legitimacy of Quebec language policy without referring explicitly to the requirement
of the exclusive use of French. Is
the prohibition of English justified? "The
issue is whether any such prohibition is justified. In the opinion of this Court
it has not been demonstrated that the prohibition of the use of any language other
than French on Sects. 58 and 69 of the Charter of the French Language is
necessary to the defence and enhancement of the status of the French language
in Quebec or that it is proportionate to that legislative purpose" Since
the evidence put to us by the government showed that the predominance of the French
language was not reflected in the visage linguistique of Quebec,
the governmental response could well have been tailored to meet that specific
problem and to impair freedom of expression minimally. Thus, whereas requiring
the predominant display of the French language, even its marked predominance,
would be proportional to the goal of promoting and maintaining a French visage
linguistique in Quebec and therefore justified under Sect 9.1 of the
Quebec Charter and Sect. 1 of the Canadian Charter, requiring the
exclusive use of French has not been so justified. French could be required in
addition to any other language or it could be required to have greater visibility
than that accorded to other languages. Such measures would ensure that the visage
linguistique reflected the demography of Quebec: the predominant language
is French. This reality should be communicated to all citizens and non-citizens
alike, irrespective of their mother tongue. But exclusivity for the French language
has not survived the scrutiny of a proportionality test and does not reflect the
reality of Quebec society. Accordingly, we are of the view that the limit imposed
on freedom of expression by Sect. 58 of the Charter of the French Language
respecting the exclusive use of French on public signs and posters and in commercial
advertising is not justified [...]. Do
sections 58 and 69 infringe upon the non discrimination clause, art. 10, of the
Quebec Charter of Rights? [...] "With
these observations in mind we turn to the question whether Sect. 58 infringes
Sect. 10. It purports, as was said by the Superior Court and the Court of Appeal,
to apply to everyone, regardless of their language of use, the requirement of
the exclusive use of French. It has the effect, however, of impinging differently
on different classes of persons according to their language of use" Francophones
are permitted to use their language of use while anglophones and other non-francophones
are prohibited from doing so" Does this differential effect constitute a
distinction based on language within the meaning of Sect. 10 of the Quebec Charter?
In this Courts opinion it does. Section 58 of the Charter of the French
Language, because of its differential effect or impact on persons according
to their language of use, creates a distinction between such persons based on
language of use. ©
For the comments and editing, 1999 Claude Bélanger, Marianopolis College |