Press Summary of the Supreme Court Decision on the Language of Signs
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.
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