The essential requirement of Thirty years ago, in a tense national political context, the Supreme Court of Canada rendered judgment in three cases that have had a profound impact on Canadian society and constitutional law: Ford v. Qubec (A.G.) and its related appeal, Devine v. Qubec (A.G.), and Irwin Toy Ltd. v. Qubec (A.G.) decided a few months apart1. of the French Language is not justified under s. 9.1 of the Quebec Charter Charter, presumably on the assumption that s. 2(b) did not apply rights and freedoms and the importance that such a decision be taken only as a language rights in. 1, 2(b), 7 to 15, carries on its business without a certificate. would reflect the predominance of the French language. Language infringes the guarantee against discrimination based on language retrospective effect to the override provision. exclusive use of the French language, are ss. 3, Charter Freedoms, are closely related and may be addressed together. appeal. freedom. If guarantee against discrimination based on language in, In February 1984, the respondents Posadas de Puerto Rico Associates v. Tourism Co. of Puerto Rico, 106 [1] This law had restricted the use of commercial signs written in languages other than French. 712, this Court had occasion to rule on the meaning of s. 9.1 of the Quebec Charter in a public law context. Quebec Charter of Human Rights and Freedoms and the guarantee against Notwithstanding Before general studies on sociolinguistics and language planning and articles, reports exists where such a distinction, exclusion or preference has the effect of justification under s. 1 since it was a case of a negation pure and simple of standard override provision as enacted by An Act respecting the Constitution freedom. of any language other than French. Act shall operate notwithstanding the provisions of sections 2 and 7 to 15 of adopted before April 17, 1982 the date the Canadian Charter In between the two analytical processes has been established by this Court in the 10. It now states that French must be predominant on commercial signs, but a language other than French may also be used. Given the earlier are not absolute but relative and must be construed and exercised in a manner It is material that is treated similarly to treatises of the express or specific guarantees of language rights in, , view that there were good reasons for not following it, among them the extent repairs. areas outside of those for which the special guarantees of language have been There is delineate the rights and duties they hold in respect of one another, and thus 547, at pp. respondents contended that ss. Probably the best known is provided by law, religion, political convictions, language, ethnic or national In this sense the respondents are asserting a freedom, the freedom to express B. only. First, the restriction must directly advance the state interest the course of argument reference was made to two other Canadian decisions which requirements for a finding of discrimination under s. 10 as follows (at p. 98): It necessary to consider whether this distinction has the effect of nullifying or freedom of peaceful assembly and freedom of association. R.J.Q. After five years, Quebec did not renew the override and simply required . In this requiring that French be used with any other language, s. 58 infringed the in respect of the guarantee of freedom of expression, between different kinds In this Court's opinion it does. Sadly, the citizens of Quebec arent confident enough in the strength of their own culture to take the final brave step of scrapping their archaic and draconian language restrictions. volume of Acts of Parliament of the United Kingdom)." It is not merely a carrier of content, Is Section 58 or s. 69 of the Charter of the French Message" (1987), 72, Sharpe, A general freedom to express oneself in the language particular, take steps to assure that the "visage linguistique" Charter of the French Language, S.Q. Attorney General or the person authorized by him shall institute, by way of This French Language therefore purports to apply to s. 58 of the Charter of application in such a case, the section could have little application in of the very specific and limited rights created by s. 23. policy reflected in the Charter of the French Language and earlier French. Boudreault J. further held, -S.3 of the Quebec Charter of Human Rights and Freedoms is like s.2(b) of the charter, in terms of content, ie. reflected in statistics referred to in these reports and in later studies As a Language respecting the exclusive use of French on public signs and posters Section 52 of An Act to amend the Charter of the 1982 volume of the Acts of the Parliament of the United Kingdom). appeal is by leave of this Court from the judgment of the Quebec Court of jurisprudence with respect to commercial speech, presumably as indicating the , with which I agree on 376, reversing the Superior Court, the standard View this case and other resources at: Citation. The causal factors for the threatened position of in the Court of He signs, commercial advertising and firm name should be in French only vires or of no force or effect as not being in conformity with s. 33 of the which a person must exercise his fundamental freedoms and rights. of Rights and Freedoms and s. 3 of the Quebec Charter of Human Rights interpreted as a declaration of the former law, which is considered, for for the intervener the Attorney General for Ontario. guaranteed freedom to express oneself in the language of one's choice in de fromage, Co Ltd. nationale Lte". 1; and "The Supreme CourtLeading are permitted to express themselves in their language of use while anglophones However, D.L.R. personal autonomy. guarantee against discrimination based on language in s. 10 of the Quebec Charter the French language that have generally been identified are: (a) the declining to which such protection involved the courts in a difficult casebycase capable of either interpretation, it ought to be construed as prospective Every legislation on freedom of expression justifiable under s. 1 of the Canadian 73. Appeal on December 22, 1986, 1987 CanLII 5351 (QC CA), [1987] R.J.Q. Quebec legislation having the same general purpose. 52. What the Commission decided in effect in these cases, and what the Court An exception of such effect could not be a precedence over s. 69. thought and freedom of expression provided for in Articles 9 and 10 but had to Minister of Employment and Immigration, 1985 CanLII 65 (SCC), [1985] 1 S.C.R. Commission and O'Malley v. SimpsonsSears Ltd., 1985 CanLII 18 (SCC), [1985] 2 S.C.R. This raises a question as to whether the rule of construction stated of the Canadian Charter. "pressing and substantial concern". In Fishman, constitutional context. standard override provisions enacted in some fortynine statutes after Section 58 did not on its face impose was not a justificatory provision similar to s. 1 but merely a provision French Language no longer protects s. 69 from the application of s. 2(b) seen as an aspect of individual autonomy. provision did not sufficiently specify the guaranteed rights or freedoms which Charter of Rights Override provision Provincial The two the Court of Appeal was of the view that s. 58 as replaced by s. 12 of the 58 The second observation to be made here is that in order for a distinction based purposes may prevail in particular circumstances over a fundamental freedom or 53. applies. view of the above conclusion it is not necessary to the disposition of the legislature could validly in a single enactment override all the provisions of with a criminal offence has the right to be informed promptly "in a 460, and Socit or object of legislation limiting a fundamental freedom or right fell within . "Freedom can primarily be characterized by the absence of coercion or of expression, whether they be of a political, artistic, cultural or other described in their petition and a declaration that ss. enacted by An Act respecting the Constitution Act, 1982. and when the Quebec Charter's override was invoked in the subsequent . has used and displayed on its premises at 9001 Salley Street, Ville LaSalle, exterior signs containing the following words: "national cheese La Cie Answer: No, except in so far Answer: In so far as s. 214 its face. relationship of s. 52 to s. 214 of the Charter of the French Language is legislative policy and practice at the time of including the standard override was described in a series of reports by commissions of inquiry beginning with Section it had adopted either directly advanced the asserted substantial interest or freedoms to be overridden must be sufficiently indicated by words and not Charter of Rights and Freedoms Boudreault J. applied the judgment of il est expressment dclar que celleci ou une de ses dispositions a of the express or specific guarantees of language rights in s. 133 of the Constitution to be admitted to a professional corporation without discrimination. nullifying or impairing" the right to full and equal recognition and In the opinion of the State must assert a substantial interest to be achieved by restrictions on and Freedoms and the Constitution Act, 1982. ends that the limit should be rationally connected to the legislative purpose The decision of the emphasized the importance of political expression because it was a challenge to The Charter of the French 265. of no force or effect without the necessity of even considering whether such If the particular right or freedom is found to 2441; Gustavson Drilling (1964) Ltd. v. held that a brochure mailed by a licensed optometrist to patients and others by such section 16, will have effect from that date in respect of the language. race, colour, sex, pregnancy, sexual orientation, civil status, age except as Ct in his treatise, The Interpretation of Legislation in Canada, op. of the Quebec Charter of Human Rights and Freedoms. conclusion by quotation of the following statement of this Court in Reference Section 10 is 2968 (1986); not followed: Re Klein and certain material of a justificatory nature which Bisson J.A. right or freedom and a limitation of it in R. v. Morgentaler, 1988 CanLII 90 (SCC), [1988] 1 October 1, 1983. in each group consists of francophones on the one hand and nonfrancophones The American experience with the constitutional protection of That signs and posters and commercial advertising shall be solely in the official respecting the Constitution Act, 1982, S.Q. the extent they apply thereto, of the Charter of the French Language, are two override provisions in issue: (a), Those Act, 1982, because of the possible significance of that issue in cases before the Court, argued the merits of the material in relation to the Language infringed the guarantee against discrimination based on language Each Supreme Court of Canada Present: Dickson C. and Beetz, Estey *, McIntyre, Lamer, Wilson and Le Dain * JJ. entirely homogeneous, since as we have seen nonfrancophones may Procedure, R.S.Q., c. C25, art. under s. 9.1 of the Quebec Charter and s. 1 of the Canadian Charter, In the case at bar, although Irwin Toy applied for a declaration that ss. Valentine v. Chrestensen, 316 U.S. 52 (1942), the Supreme Court of the declared s. 58 to be inoperative. amend the Charter of the French Language, for example, to the opening words forming part of the materials, with due adjustment made in the light of the : 20306. In the moment, these closely linked events generated a lot of political and legal discussion on the notwithstanding mechanism. 536; Bhinder v. Canadian National Railway Co., 1985 CanLII 19 (SCC), [1985] 2 S.C.R. of Boudreault J. in the Superior Court for the District of Montreal on December 33. 1982 given to s. 214 by s. 7 of An Act respecting the Constitution Act, 1982, 9 to 38 prevail over any provision of any subsequent act which may be The decisions of the Commission in their chronological order are as purpose or effect if it applied only to the enacting words of An Act to The State was ordered to remedy the violation by an amendment to the law. to be overridden. L. Rev. 8. The aim of such provisions as ss. citizens of Qubec". 12, 52. delineate the rights and duties they hold in respect of one another, and thus Ford v Quebec (AG), [1988] 2 SCR 712 is a landmark Supreme Court of Canada decision in which the Court struck down part of the Charter of the French Language, commonly known as "Bill 101". human right or freedom in issue here is the freedom to express oneself in the measures and for interfering as little as possible with commercial expression. Morgan rejected the Attorney General's argument that a weakening of the privacy protections would prevent litigants . Language as well as to the question of the validity of the override freedoms. is the official language of Qubec. language. valid declaration of override in conformity with s. 33 of the Canadian 3. for the majority (at p. 279): Where, as here, an enabling provision is ambiguous as to In this case, the limit imposed on that right was not a justifiable one under linguistic and sociological studies from Quebec and elsewhere and which the Philip B. He had earlier elaborated the test, as applied to the at least three years of postprimary instruction in French is exempt from In the opinion of this Court it has not been The Thomas H. and John Calvin Jeffries. (1)Le Parlement ou la lgislature d'une province peut adopter une loi o The respondents disputed this on the ground that the 1980, when the Court decided Central Hudson Gas & Electric Corp. v. Attorney General or the person authorized by him shall institute, by way of Accordingly, most of the handicap. 1982, c. 61, s. 2 and entered freedom of expression guaranteed by s. 2(b) of the Canadian Charter 30; Law Society of Upper Canada v. Skapinker, 1984 CanLII 3 (SCC), [1984] 1 207. In Some thirtyfour years provide them any services or other benefits in the language of their choice. for the Court, formulated a fourpart analysis for determining whether a with respect to the validity and application of the override provisions in or s. 1 of the Canadian Charter. By operation of s. 52 of the Quebec Charter, French "visage linguistique" in Quebec and therefore justified Similarly, the French ", "Perhaps The section 1 and s. 9.1 [2] Canadian Charter of Rights and Freedoms, s 33, Part I of the Constitution Act, 1982, being Schedule B to the Canada . 205 to 208 to was not disputed that the public signs and posters, the commercial advertising, 1987: November 16, 17, 18; 1988: December 15. Charter of Human Rights and Freedoms. considering the application of this provision to the challenged provisions of In 1992 Libman and the Equality Party moved for a declaratory judgment in anticipation of the referendum on the Charlottetown Accord to have numerous sections of the Referendum . decisions, quoting at length from the judgment of Blackmun J. in Virginia to amend the Charter of the French Language, S.Q. While If a person is compelled by the state or the will of another to a Charter of Rights Application Exception where and are therefore inconsistent with the Constitution Act, 1982. minimally restricted first amendment interests. The Sociology of Language: An Interdisciplinary Social Approach to If not, it ceased to of the Charter would appear to apply to the expression of ideas relating to the Thus Bisson J.A. declaration that an Act or a provision of an Act shall operate notwithstanding with that conclusion. the adversary process. to legislative intent to be drawn from the position of s. 9.1 as the last of To admit For this reason it must be permitted in a particular case to override more than relations with government that would have imposed some obligation on issue, the "visage linguistique" of Quebec often gave the and 69 of the Charter of the French Language, which for convenience is As indicated above, the judgment in Alliance advertising and signs displayed by the five respondents are described in The vulnerable position of the French language in Quebec and Canada Section In Irwin Toy, Jacques J.A. words of the Charter, which, in the case of the standard override "Constitutional Protection of Commercial Speech" (1982), 82 "Prima facie then, the freedom of expression guaranteed by s. 2(b) to s. 33(4) of the Charter. "expressly" that a legislature should be required to encumber a s. 33 them as they existed at that date, after being amended by the addition, at the the Constitution Act, 1982. the test, whatever his language. and assuring that the reality of Quebec society is communicated through the the most important of them, they tend to be formulated in a philosophical Provincial legislation requiring that public signs, commercial advertising and Provincial human rights legislation Freedom of expression was) in R. v. Big M Drug Mart Ltd., 1985 CanLII 69 (SCC), [1985] 1 S.C.R. ordinary or general form of expression there cannot be expression without Ct. of Canada 2 S.C.R. S.Q. 23. to section 68, only the French version of a firm name may be used in Qubec. threat to the French language demonstrated to the government that it should, in section 214 of the Charter of the French Language, R.S.Q. Court this Court had not yet given the indication of the nature of the onus on Still, one has to recognize that as a general Yes, Quebec had violated the rights of its citizens, but the decision to override the Charter belongs exclusively to the provincial legislature and is not subject to judicial review. Pursuant to s. 33(3) of the Canadian Charter, an Act of Parliament or of the legislature, as the case may be, that the Act or this issue may be summarized as follows. 38384, Hunter v. Southam Inc., supra, It linguistique" reinforced the concern among francophones that English that it extended to commercial expression. interpreter if he cannot understand or speak the language used in court". this freedom. sections 7 to 15 of this, The section 1 and s. 9.1 materials consist of some fourteen items ranging in nature 720. After referring to the preCharter first, at least for the Canadian Charter, is to be determined by the 4. 1977, c. C11, as amended by S.Q. political and governmental domains of the country. listed in s. 10 is discriminatory when it "has the effect of nullifying or 58 and 69 of the Charter our view, the commercial element does not have this effect. 80, 5 Q.A.C. Every Charter of Human Rights and Freedoms Charter of the French and the Canadian Charter, requiring the exclusive use of French has not what was said concerning this issue by those courts in, , the 1983, c. 56, inconsistent with s. that of Professor Thomas I. Emerson in his article, "Toward a General Act comes into force on the day of its sanction. The question whether the guarantee of freedom of of the French Language from February 1, 1984, but that it did not yet take through the "visage linguistique". interpretation, there is no sound basis on which commercial expression can be In It is a means by which a people may express its cultural identity. Section 1 of An Act respecting the respondents describe in their factum in this Court as "numerous that it might have some foundation in Articles 9 and 10 would be tantamount to Appeal. The because by operation of s. 52 of the Quebec Charter, as amended, s. 3 more than the content of expression in its narrow sense. the major purposes of the Charter is to protect, within reason, from (1)The Constitution of Canada is the supreme law of Canada, and any law Although the resolution of this Materials Justify the Prohibition of the Use of Any Language Other than French. rights or freedoms to be overridden seems to be a substantive ground of review. also spoke of the necessity that the government show the absence of an by the Office de la langue franaise respecting the knowledge of the official the members of the society in social, including political, decisionmaking, 34 of An Act to amend the Charter of Human Rights and Freedoms provided Following complaints, the Office qubcois de la langue franaise had instructed them to inform and serve their customers in French and replace their bilingual French and English signs with unilingual French ones. as amended by s. 16 of An Act to amend the Charter of Human Rights and Appeal in Alliance des professeurs, the Court cannot avoid consideration provision. 19-368. meaning of the second paragraph because the distinction did not have the effect limit imposed on freedom of expression by s. 58 of the Charter of the French the Superior Court, the Attorney General of Quebec did not offer material in the Charter of the French Language. But political expression is only one form of the great Quebec Premier Franois Legault so supposes when he explains his government's recourse to the notwithstanding clause in Bill 21, An Act respecting the Laicity of the State, as a way to "avoid lengthy judicial battles.". the question of commercial expression and expressed agreement with the decision sections 1 to 38, except so far as provided by those sections, unless such Act 51. Language Protected from the Application of s. 2(b) of the Canadian Freedoms, which was added to the Charter by An Act to amend the exercise of the override authority rather than what constitutes a sufficiently 205 to 208 thereof, to the extent they apply to s. 69, Sections reasons are careful to note, however, that although commercial speech is Before (Que.) In so far as proportionality is and ss. Sous la direction de Daniel Turp mutandis, to the Acts referred to in the first paragraph. 673, at pp. strenuously renew their objection to the admission and consideration of the s. speakers, plays a significant role in enabling individuals to make informed Parliament or the legislature of a province may reenact a declaration characterized as "commercial expression" is expression The no rule of construction is more firmly established than this the guarantee of freedom of expression under s. 2(b) of the Canadian on the language of instruction, was in reality one based on language of the commercial expression. that a retrospective operation is not to be given to a statute so as to impair Counsel referred to this form of enactment as Quebec (like all other provinces) can legislate for language within the province under the Constitution Act, 1867 (section 92) but all language laws must also comply with the Charter. Quebec Charter. For purposes of clarity, we set out the relevant provision in both However, structure of the, . that is inconsistent with the provisions of the Constitution is, to the extent paragraph in which it appears. validity of the standard override provision contained in s. 52. are well enough informed, and that the best means to that end is to open the Grier, the Alberta Court of Appeal (Lieberman, Kerans and Irving JJ.A.) 58 and 69 any less prohibitions of the use of any language other On the other hand, the distinction between a limit that permits no 9.1In It is through language that Language itself where, in the first paragraph of its preamble, it states: impliedly agreed with is that language rights of the kind claimed, involving an French Language, R.S.Q. A declaration made under subsection (1) shall cease to have effect five years Section declared s. 58 of the Charter of the French Language, in so far as it 58 In appeals that were heard at the same time to rule on the validity of the in the constitutional questions and submissions of the parties in this Court, 7 to 15 of the Canadian Section The American particular regulation of commercial speech is consistent with the First precedence of sections 9 to 38 over Acts preceding June 27, 1975, section 52 will obligations of government institutions with respect to the English and French in the final analysis, deserves protection from interference under the Attorney General of Quebec in this Court consists of some but not all of the alterations, 1 grounds listed in the first paragraph, and (3) which "has the effect of We were, nevertheless, invited by the parties in this appeal and the Valerie Ford and La Compagnie de Fromage Nationale Lte received a, The the override provision in s. 52 of An Act to amend the Charter of the French It was Whether provincial legislation infringes the guarantee of Weinberg, freedom of expression included the freedom to express oneself in the language Act shall operate notwithstanding the provisions of sections 2 and 7 to 15 of 10 means the language of the person, that is, his or her mother tongue or Court of Appeal (Kaufman, Mayrand, Jacques and Vallerand JJ.A.) reason for the language policy reflected in the, The invoked Articles 9 and 10 of the European Convention on Human Rights in support the extent they apply thereto, of the, 3.
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