Documents
in Quebec History
Last
revised: 23 August 2000 | Documents on the Controversy Surrounding the Language
of Commercial Signs in Quebec (Bill 178) December 1988
Individual
Rights cannot be Considered as Absolute Gaston Cholette (ex President
of the Commission de la Protection de la Langue Française) "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:
"Should we, on linguistic
matters, as we have been urged to do, have recourse to the Reports of the European
Commission of Human Rights or to the decisions of the European Human Rights
Court based on the Convention to safeguard human rights and fundamental freedoms
adopted by the European Council in 1950? The problem of languages, in Canada,
is so specific to the history and to the context of our country that only a solution
proper to this context can be applied" 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: "Although
it does not bind the tribunals of our country, the reasoning behind the judgements
of the Supreme Court of the United-States, with its accumulated experience of
two hundred years and more than a passing interest in this question, has our support
and brings us to conclude that had the Quebec legislators wished to make such
an exclusion - and everyone knows that no exclusion exists unless one has been
made - it would have done so; however, when it was enacted that all citizens are
guaranteed freedom of expression, commercial advertising had not been excluded." 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 |