The temptation is great to jump on the bandwagon of the notwithstanding clause, lest one be found wanting on the simplistic scale of nationalism. But fear of seeming to be for it and to be accused of should not be taken as a base for the positions taken by this newspaper. The nationalism of Le Devoir has always sought to reconcile the respect of rights, the relentless defence of the cause of French, from one end of the country to the other, generosity toward minorities and efficient support to the desire of Quebec to develop and to express its identity. This we have done in the name of superior values and with independence of character.
Following the judgement of the Supreme Court on the exclusive use of French on commercial signs, the political problem is as follows: is Quebec justified to derogate from the recognition of freedom of expression to reach the legitimate objective of having a French face in this province, one that would permit the Quebec people to express its identity?
A political problem
This is truly a political problem as the judgement having been rendered; the time of reckoning has now come for the government. The Supreme Court has done its job well; it is now the turn of the National Assembly to do so as well. As we write, this means that on the subject of commercial signs one must take into consideration the right of freedom of expression as was clarified in law by the Court as well as the right of Quebec, also confirmed by the Court, to derogate from the exercise of this fundamental freedom.
Contrary to what some contend, the historic failure of 1982 was not caused by the refusal in Quebec to have enshrined into the Constitution fundamental rights: it was firstly to Quebec that the special protection of rights was aimed by inscribing them into a constitutional law.
Let us imagine that Quebec is independent, with no doubt the Charter of Rights it has currently and a Quebec Supreme Court. Given the decisions already rendered by Quebec judges, we can likely state, without risking to be wrong, that we would be faced with the same conclusions. But we would then be among ourselves, without the possibility of blaming somebody else.
That is what the whole thing is about. According to the Quebec Charter (of the French Language), as enacted by the National Assembly, we can impose French everywhere but there is incompatibility between the prohibition of other languages on commercial signs and the freedom of expression guaranteed by the Charter (of Rights). The rights guaranteed by the Charter of Rights have priority over all other laws, including over Bill 101, unless a notwithstanding clause has been specifically included. And the National Assembly, as much under the Parti Québécois as under the Liberals, has not wished to eliminate the priority given to the rights. And it is worth to say it and to repeat it; this is about our rights.
On the other hand, it is not because in a specific case freedom of expression annoys us that it ceases to be a right. Freedom of expression is a front-line right. It includes the right to express yourself in the language of your choice and applies to the field of commerce decided the Supreme Court. Thus the exercise of this right has priority over the stipulations of Bill 101 relative to the exclusive use of the French language on commercial signs. This having been clearly affirmed, one must not forget that the same Charters anticipate that reasons may exist to limit the exercise of this right, however much it may have priority otherwise. The objective pursued by the exclusive use of the French language on commercial signs could be one of these.
The Supreme Court examined carefully the reasons raised by the Attorney General of Quebec to justify the exclusive use of the French language and, consequently, the exclusion of all other languages. It recognised that the documents submitted establish strongly the importance of the legislative objective of the Charter of the French language and sought to respond to real and pressing needs and that the linguistic policy underpinning the Charter aim at an important and legitimate objective.
Despite these important precision for the future of our national identity - the high court recognised the need for a legislative solution to this problem and the validity of a clear preponderance for the French language on signs and posters - nevertheless the Court concluded that the restrictions imposed by the banning of a second language were not justified.
Does any of that prevent Quebec from taking action? Not at all as the same Charter of Rights gives the province the power to make laws notwithstanding some dispositions of the Charter, among which is found the provision for freedom of expression. This is where the real political problem emerges. The government can act. Will it wish to do so?
After the studious demonstration and the clarification given to freedom of expression by the highest tribunal of the land, and taking into account the other provisions of Bill 101 and the other means available, it is difficult to adhere to the solution of the notwithstanding clause. Yes, French everywhere, but not at the expense of freedom of expression and not if it prevents others from being seen.
The linguistic face
Evidently, the linguistic facade has a symbolic dimension and is loaded with emotions, but it is not just in the face that it must be reflected but throughout the entire body. As well, would the fact that there would be other traits on this otherwise very francophone face, negate what we are, or would it not be instead a better reflection of ourselves?
Although important, and deserving of being preserved and ameliorated, the French face of Quebec must not be isolated from the other means to achieve the objectives of the Charter of the French language. We should beware of the far too great importance that is ascribed to a visage whose traits are foreign. What is more pressing is to vigorously, and without delays, tackle the much more determining factors for the future of a francophone Quebec that the selection and welcoming policies of immigration are, as well as the francisation of the language of work, and the right of francophones to be served in their language.
Are we strong enough to impose the respect of the French language everywhere in Quebec, and especially in Montreal, an international city in North America? With French everywhere, while permitting other Quebecers to show their presence on commercial window panes, at the same time as we demand to be able to work and be served in French and while integrating the maximum of immigrants? This is the wager that Le Devoir believes is worthy of what we have become. A passion to live in French tempered by the respect for fundamental rights should help us achieve these goals.
The temptation shall be great for the Prime Minister to put forward a solution that decides nothing but tears everybody apart. For Mr. Bourassa, the time is not to shuffle the deck but to show his hand.
Source: editorial in Le Devoir, December 17, 1988, p. A-8
© For the translation, 1999 Claude Bélanger, Marianopolis College