Documents on the Controversy Surrounding the Language
of Commercial Signs in Quebec (Bill 178) December 1988
Canadian
Press Summary of the Supreme Court Decision on the Language of Signs As published
in the Montreal Gazette, December 16, 1988, p. A-7 OTTAWA The
following text is an excerpt from yesterday's Supreme Court of Canada decision
on the public signs provisions of Quebec's Bill 101, in the case of Quebec vs.
La Chaussure Brown's (Brown's Shoes). Freedom
of expression: The
"freedom of expression" guaranteed by Section 2 (b) of the Canadian
Charter (of Rights and Freedoms) and Section 3 of the Quebec Charter (of Human
Rights and Freedoms) includes the freedom to express oneself in the language of
one's choice. 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 one's choice. Language
is not merely a means or medium of expression; it colors the content and meaning
of expression. It is a means by which a people may express its cultural identity.
It is also the means by which one expresses one's personal identity and sense
of individuality. The
recognition that "freedom of expression" includes the freedom to express
oneself in the language of one's choice does not undermine or run counter to the
express or specific guarantees of language rights in section 133 of the Constitution
Act, 1867 and sections 16 to 23 of the Canadian Charter. The
expression contemplated by sections 58 and 69 of the Charter of the French Language
- conveniently characterized as commercial expression - is expression within the
meaning of both section 2 (b) of the Canadian Charter and section 3 of the Quebec
Charter. Commercial
expression, like political expression, is one of the forms of expression that
is deserving of constitutional protection because it serves individual and societal
values in a free and democratic society. Indeed, over and above its intrinsic
value as expression, commercial expression, which protects listeners as well as
speakers, plays a significant role in enabling individuals to make informed economic
choices, an important aspect of individual self-fulfilment and personal autonomy. This
leads to the conclusion that section 58 infringes the freedom of expression guaranteed
by section 3 of the Quebec Charter, and section 69 infringes the guaranteed freedom
of expression under section 2 (b) of the Canadian Charter and section 3 of the
Quebec Charter. Reasonable
limits: The
material adduced in this court did not justify the limit imposed on freedom of
expression by sections 58 and 69 of the Charter of the French Language. The
material established the importance of the legislative purpose reflected in the
Charter of the French Language - the enhancement of the status of the French language
in Quebec - and that it was a response to a pressing and substantial concern -
the survival of the French language. The
threat to the French language demonstrated to the (provincial) government that
it should, in particular, take steps to assure that the "visage linguistique"
of Quebec would reflect the predominance of the French language. While the material
indicated a rational connection between protecting the French language and assuring
that the reality of Quebec society is communicated through the "visage linguistique,"
it did not demonstrate that the requirement of the use of French only in sections
58 and 69 is either necessary for the achievement of the legislative purpose or
proportionate to it. 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 section 9.1 of the
Quebec Charter and section 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. Accordingly,
the limit imposed on freedom of expression by section 58 of the Charter of the
French Language is not justified under section 9.1 of the Quebec Charter, and
the limit imposed on freedom of expression by section 69 of the Charter of the
French Language is not justified under either section 1 of the Canadian Charter
or section 9.1 of the Quebec Charter. Section 9.1 is a justificatory provision
corresponding to section 1 of the Canadian Charter subject, in its application,
to a similar test of rational connection and proportionality. Discrimination
based on language: Under
section 10 of the Quebec Charter, a "distinction, exclusion or preference"
based on one of the grounds listed in section 10 is discriminatory when it "has
the effect of nullifying or impairing" the right to full and equal recognition
and exercise of a human right or freedom. Although
section 58 of the Charter of the French Language applies to everyone, the requirement
of the exclusive use of French, regardless of their language of use, has the effect
of impinging on different classes of persons according to their language of use. Francophones
are permitted to express themselves in their language of use while anglophones
and other non-francophones are prohibited from doing so. Because
of this differential effect or impact on persons according to their language of
use, section 58 creates a distinction based on language within the meaning of
section 10. The
human right or freedom in issue here is the freedom to express oneself in the
language of one's choice. The distinction based on language of use created by
section 58 has the effect of nullifying the right to full and equal recognition
and exercise of this freedom. Section 58 is therefore of no force or effect as
infringing section 10 of the Quebec Charter. The same conclusion applies to section
69 of the Charter of the French Language. ©
1999 Claude Bélanger, Marianopolis College |