Rights cannot be Considered as Absolute
"The most frequent argument made by those who systematically attack the Charter of the French Language, especially since the judgement of the Supreme Court on the matter of public signs and commercial advertising, is that this law contravenes individual and fundamental rights and this would make of Quebec the only state in the world to have adopted such a fascist law and Quebecers should be ashamed of having committed such a grave crime against humanity.
In the present context, where individual freedoms are, for all intents and purposes, defined by judges, it must be remembered that freedoms are not absolutes and that the peoples representatives have the right to circumscribe the application of fundamental rights and to define their exercise in the respect of democratic values, public order and the well-being of the citizens, as is defined in article 9.1 of the Charter of Rights and Freedoms. This rule is also found in the Canadian Charter of Rights and Freedoms where it is stated that the rights defined within it are subject to such reasonable limits as is demonstrably justified in the context of a free and democratic society.
[Note from C. Bélanger: there follows a discussion of a decision of the European Court, in 1966, regarding the language of instruction in areas of Belgium; in practice the Court held that there must be established an equilibrium between the interest of the whole and the individual rights and that the Belgium government had not violated rights in proscribing the Flemish language in certain areas of French speaking Walloon]
The legislator has full power to determine the application of fundamental rights
Thus, if the Belgian government did not violate the Rights of Man by establishing a unilingual regime in the Flemish part of the country, and another one in the Walloon section, with all the consequences that follow from such decisions in several respects, especially on the language of teaching, there is no reason to think that Quebecers should feel guilty to have limited freedom of expression in the fields of commercial advertising and public signs by enacting the Charter of the French language. In these fields, where the Quebec legislation of Bill 101 in no way may be compared with the severity of the Belgian legislation, there are many exceptions outlined to the general rule: for example, the right to advertise in English in the anglophone media, the right to advertise in French and in another language inside an establishment with no more than four employees; other exceptions touch on cultural products and messages with a religious, political, ideological or humanitarian aim. Thus, there is no absolute ban applying to all languages but French.
French is the only language in danger in Canada and in Quebec
The only language threatened in Canada, or in Quebec, is French. The Government of Quebec has not only the right but the duty to take steps to protect it by making of Quebec a distinct territory; this involves inevitably restrictions in the use of English, an invasive language that derives its strength from a powerful North America.
Only articles 16, 29 and 34 of the Charter of the French language impose the exclusive use of French. These articles deal with the written communications of the public administration with other governments or corporate bodies established in Quebec, road signs and the official designation of professional corporations. There is nothing dramatic in any of that. In all other cases, the general rule on the use of French has exceptions or coexists with this other rule that states that in every case where the law does not require the exclusive use of French, the official language and another language may continue to be used.
In the case of Brown Shoes Inc., Judge Boudreault of the Superior Court admitted that it is possible that the objective pursued by the Charter of the French Language and its article 58 in particular, that is to contribute to the survival of the French language and culture, and to this desirable end that a measure such as is encompassed in s. 58, is justifiable within the framework defined in article 9.1 of the Charter of Rights and Freedoms. However, since the Attorney General did not bring forth any testimony or documentary evidence to this effect, and since he did not argue that the challenged article could be saved by article 9.1 of the Charter, then consequently, Judge Boudreault concluded that article 58 was inoperative.
As for the Appeal Court, it rejected out of hand the decision of the European Court. Here is what the judgement stated on this matter:
Yet, Judge Boudreault, of the Superior Court, had not hesitated in according considerable weight to some decisions of the Supreme Court of the United States. This is what he had to write about this:
The Supreme Court took an attitude that was nearly identical to that. Thus, when it comes to freedom of expression, a person, for example the owner of a corner store, is put on the same footing as a multinational corporation that has no known mother tongue. In the areas of language and culture, where Western Europe is a model when it comes to the recognition of diversity while the United States is, on the contrary, an immense melting pot where the homogenisation of cultures takes place, the Canadian judges did not hesitate to approve, without nuances, of American judicial decisions, this from the country of raw capitalism, and effectively raised commercial advertising to the rank of high principle, yet they disdained to examine seriously the work of the European Court of Human Rights that recognised the legitimacy for legislative bodies to establish a just equilibrium between safeguarding the general interest of a threatened community and the respect of individual rights, between the principle of linguistic territoriality and that of individual freedoms.
What is presently more important for Quebecers, a French speaking people surrounded by an Anglo-Saxon sea, is not to get caught-up in an individualistic and dehumanised, yet falsely moralising conception of individual freedoms that is in fact nothing more than the expression of might makes right. Instead, what is needed is to harmonise a healthy conception of fundamental rights with the imperatives of the survival of a threatened people; that is what the National Assembly had done with much wisdom and restraint when it adopted the Charter of the French Language.
Source: Gaston CHOLETTE, "Les droits individuels ne sauraient être considérés comme un absolu", in Action Nationale, Vol. 79, No 3 (March 1989): 203-208
© 1999 For the translation; Claude Bélanger, Marianopolis College