Mini-Review MR-18E COMMERCIAL SIGNS IN QUEBEC: THE SUPREME COURT DECISIONS Jean-Charles Ducharme Law and Government Division 19 December 1988 Library of Parliament Bibliotheque du Parlement Research Branch
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V 4~ ~ A CANADA COMMERCIAL SIGNS IN QUEBEC: THE SUPREME COURT DECISIONS On 15 December 1988, the Supreme Court of Canada rendered unanimous judgments in the cases Chaussure Brown s Inc. and Singer. Both judgments found certain provisions of Quebec s Charter of the French Language (R.S.Q., c. C-il), also known as Bill 101, to be without force or effect. They also clarified several important points of law, related to both Charters of Rights. CHAUSSURE BROWN S INC. In this case, the Supreme Court had to decide whether sections 58 and 69 of Bill 101, which provide for unilingual French commercial signs and firm names, contravened the freedom of expression guaranteed by the Canadian Charter of Rightsand Freedoms (Canadian Charter) and by the Quebec Charter of Human Rights and Freedoms (R.S.Q., c. C-12) (Quebec Charter). A. Power to Override The Court considered whether the relevant provisions of Bill 101 were protected from the application of the Charters by means of an override (or notwithstanding ) clause. It recognized that sections 52 of the Quebec Charter and 33 of the Canadian Charter have the same effect and permit legislative measures to be protected from the application of the rights and freedoms guaranteed by those Charters. The Court went on to observe that the override clause in the Quebec Charter has never been invoked with respect to Bill 101, while that in the Canadian Charter has been invoked twice, by section 214 of Bill 101 and by section 52 of the Act to Amend the Charter of the French Language (S.Q. 1983, c. 56).
2 Section 214 was added to Bill 101 following passage of the ~ respecting the Constitution Act, 1982 (S.Q. 1982, c. 21), which protected all Quebec legislation from the application of the Canadian Charter. The Quebec Court of Appeal, in Alliance des professeurs de Montréal v. Procureur gënëral du Québec [1985] C.A. 376, ruled that recourse to a, standard override provision of this kind was unconstitutional, but the Supreme Court ruled it valid as long as such legislation (which cannot be retroactive) specifies the numbers of the sections of the Canadian Charter that are being overridden. Furthermore, since an override clause remains in effect for five years unless renewed (subsection 33(3) of the Canadian Charter), section 214 of Bill 101 ceased to have effect on 23 June 1987; thus the original wording of Bill 101, including section 69, dealing with firm names, was subject to the application of the Canadian Charter. The other override clause considered by the Court, section 52 of the ActtoAmend thecharter of the French Language, which was proclaimed on 1 February 1984, and which will cease to have effect on 1 February 1989, applies only to the amendments contained in that Act, in particular those referring to section 58, which deals with commercial signs. The Court concluded that only section 69 is subject to the Canadian Charter and that sections 58 and 69 of Bill 101 are indeed subject to the Quebec Charter. B. Freedom of Expression The Court ruled that the freedom of expression guaranteed in paragraph 2(b) of the Canadian Charter and the freedom of expression provided for in section 3 of the Quebec Charter have the same effect. This ruling enabled the Court to find the two sections [of Bill 101] in question to be without force or effect given the scope of the concept of freedom of expression. First, the Court recognized that freedom of expression 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 if one is prohibited from
3 using the language of one s choice (p. 37) [emphasis added]. Expression is thus not limited to the message but includes the medium as well. As for freedom, the Court defined it in R. v. Big M_Drug Mart, [1985], 1 S.C.R. 295, as the absence of coercion or constraint. In support of this approach the Court reviewed the decisions of the European Commission of Human Rights under the European Convention on Human Rights. Second, the Court ruled that commercial expression is protected by the right of freedom of expression in the same way as are political, cultural and artistic expression. Using references to American case law, the Court refused to find that freedom of expression applies only to political 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 (p. 55). In an age of consumerism, commercial expression has a significant role to play in enabling individuals to make enlightened commercial choices. Since public signs and firm names are types of commercial expression, sections 58 and 69 of Bill 101 limit that expression, and thus the freedom of expression guaranteed by the Canadian and Quebec Charters. C. Reasonable Limits on Rights and Freedoms The Court found that section 9.1 of the Quebec Charter corresponds to section 1 of the Canadian Charter; this enabled it to apply the criteria formulated in R. v. Oakes [1986] 1 S.C.R. 103, to both Charters. To be reasonable and justifiable in a free and democratic society, a restriction on rights and freedoms must meet two requirements: first, the legislative objective must be of sufficient importance to warrant overriding a constitutional right; and second, the means chosen to achieve this objective must be proportional or appropriate, that is, have a rational connection with the objective, impair the rights at issue as little as possible, and not encroach so severely on individual or group rights that the effect outweighs the objective. In light of these criteria, the Court recognized the merits of the objective of sections 58 and 69, which was to preserve the French
4 face of Quebec, in view of the vulnerable position of the French language in Quebec and Canada. this objective: ~ However, with respect to the means used to achieve In the opinion of this Court, it has not been demonstrated that the prohibition of the use of any language other than French in ss. 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. (p. 74) Article 58 and 69 are thus incompatible with the freedom of expression guarantees contained in both Charters. The Court did however stipulate that: requiring the predominant display of the French language, even i1~iarkedpredominance would be proportional to the goal of promoting and maintaining a French visage linguistique in Quebec and therefore justified under [the two Charters] (p. 74). [emphasis added] D. Discrimination The Court found sections 58 and 69 to be without force or effect on the additional grounds that they infringe the Quebec Charter guarantee against discrimination on the basis of language (s. 10). This argument had previously been rejected by the Quebec Court of Appeal. To reach its own conclusion, the Supreme Court looked at the effect of the distinction and not merely its surface meaning: though the prohibition of a language other than French applied to everyone, its effect on Francophones, who were free to use their language of use, was different from its effect on non-francophones, who were not. The Court therefore concluded that this distinction impairs the full and equal recognition and exercise of the right to express oneself in the language guaranteed by the Quebec Charter. of one s choice as
5 SINGER A. Legislative Powers The appellant, Allan Singer Ltd., wishing to post signs in English only, asked the Supreme Court to find that the province had no powers in matters of language. The Court, however, recognized Quebec s power to legislate on language, on the grounds that language is not an independent matter of legislation but is rather ancillary to the exercise of jurisdiction provided for by the distribution of powers in the Constitution Act, 1867. With respect to this opinion the Court concluded: In order to be valid, provincial legislation with respect to language must be truly in relation to an institution or activity that is otherwise within provincial legislative jurisdiction. (p. 15) Since the disputed provisions were ancillary to the regulation of commerce within a province, they fell within Quebec s area of jurisdiction. The Court also ruled that section 58 of Bill 101 did not in any way constitute criminal law and is not ultra vires, since it could not be viewed in isolation from other provisions in Bill 101 establishing a regulatory scheme covering an aspect of commercial activity. The Court recognized that provincial laws may prohibit an activity and enforce this prohibition with penal consequences, without thereby legislating on matters of criminal law. B. Other Provisions Found to be Without Force or Effect In addition to section 58, the Singer decision declared sections 59, 60 and 61 of Bill 101 to be without force or effect, and also sections 8, 9 and 12 to 19 of the Regulation Respecting the Language of Commerce and Business, by virtue of subsection 2(b) of the Canadian Charter and section 3 of the Quebec Charter. These sections provide exceptions to the principle set down in section 58, and when a parent section has been found unconstitutional, the exceptions connected to it are also unconstitutional.
6 The Court also declared that though sections 52 and 57 of Bill 101, regarding publications, do infringe freedom of expression, they impose reasonable and proportional limits because they do not require the exclusive use of French. Moreover, the Court ruled that these sections do not create discrimination within the meaning of section 10 of the Quebec Charter, since they impose their reasonable limits according to the terms of section 9.1 of that Charter. ~ CONCLUSION The two judgments by the Supreme Court of Canada regarding the language of commerce and business in Quebec contain a number of elements that are certain to re-appear in other decisions based on the Canadian Charter. Flexibility in the requirements for using the override clause, which makes it possible to enact a standard override provision, constitutes an important departure in our jurisprudence. The parallel nature of the Canadian and Quebec Charters with respect to the power to override, freedom of expression, and reasonable limitations on rights and freedoms, constitutes another important aspect of these judgments: it makes it possible to assert that even without the Canadian Charter, Bill 101 s provisions would have been found invalid on the same grounds. These cases have also broadened the whole idea of freedom of expression, by stating it includes commercial expression as well as political expression and thus opening the way to the inclusion of other types of expression (e.g., cultural or artistic). While reaffirming its criteria for the reasonableness of limits on rights and freedoms, the Court had never before gone so far in defining what would be reasonable as it did in its reference to a marked predominance of French. Finally, with respect to the distribution of powers, these judgments have confirmed provincial jurisdiction in matters of language.