from the Decision of the Supreme Court of Canada On the Language of Signs in Quebec
[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