By Vinay Desai
Lawyer
Borden Ladner Gervais S.E.N.C.R.L.,
S.R.L.
The
Québec Charter of the French Language
(the “French Charter”) received a
constitutional win following the recent decision in 156158 Canada inc. v. Attorney
General of Québec, 2017 QCCA 2055, where the Québec Court of Appeal upheld
the validity of several provisions relating to product packaging, publications
(including websites), posters and commercial advertising.
Background
Eleven
businesses in Montreal operated or controlled by individuals whose primary
language is English were fined for:
(i)
having product packaging solely in English contrary to s. 51 of the French
Charter;
(ii)
having websites solely in English contrary to s. 52 of the French Charter; or
(iii)
advertising solely in English or where the French text was not markedly
predominant contrary to s. 58 of the French Charter.
The
trial judge found all businesses guilty and the Superior Court of Québec as
well as the Court of Appeal (the “Court”)
upheld the judgement.
Court of Appeal Decision
The
issue on appeal before the Court was whether sections 51, 52 and 58 of the
French Charter violated the businesses’ freedom of expression, right to
equality and liberty and right to peaceful enjoyment of private property, all
as guaranteed by the Canadian Charter of
Rights and Freedoms and the Québec Charter
of Human Rights and Freedoms (together, the “Charter”).
Prior
to its decision, the Court underwent an analysis of the prior fundamental case
law on the constitutionality of several of French Charter provisions.
In Ford v. Quebec (Attorney General)([1988] 2 RCS 712), the Supreme Court of
Canada (the “SCC”) held that
requiring public signs, posters and commercial advertising to be exclusively in
French, as was required by the old s. 58 of the French Charter, infringed upon
the businesses’ freedom of expression. However, requiring the predominant or
concurrent display of French would be justified.
Following
Ford, the Québec legislature chose to
implement these suggestions, which were upheld by the Québec Court of Appeal in
Entreprises W.F.H. Ltée v. Québec (Procureure générale du) (2001
CanLII 17598).
In Devine v. Quebec (Attorney General) ([1988] 2 SCR 790), the SCC held that
requiring the use of French in addition to another language for catalogues,
brochures and other publications was justified under the Charter and therefore
did not violate freedom of expression or right to equality.
The
businesses argued that the linguistic landscape in Québec has changed since Ford and Devine were decided such that the French language is no longer vulnerable,
and this justifies a departure from the conclusions of these precedents.
The
Court of Appeal acknowledged an improvement in the use of French in Québec, but
highlighted that several prevailing factors continued to sustain the
vulnerability of the language: the low birth rate among Francophones; the
declining Francophone population outside of Québec; and the dominance of the
English language at the top of the economic spectrum.
In the
Court’s view, the fact of the modest progress made in linguistic transfers
towards French isn’t sufficient to conclude that the vulnerability of the
French language has diminished.
Ultimately,
the businesses failed to prove a fundamental change warranting the re-opening
of the debate regarding the French language.
The
Court of Appeal, agreeing with the lower courts, rejected the businesses’
argument that requiring the markedly predominant or joint use of French
violated their freedom of expression and right to equality, and underlined that
that any claimed violation was justified under the Charter.
In
response to their claim of right to liberty, the Court highlighted that
corporations do not benefit from such a right, which only protects basic human
freedom to make inherently private choices free from state interference, and
that it does not support an unconstrained right to transact business in any
manner they wish.
Finally,
the impugned provisions of the French Charter did not affect the businesses’
right to peaceful enjoyment of private property as they were permitted to
advertise their desired content in the language of their choice, so long as it
is accompanied by a concurrent or markedly predominant French version.
Takeaways
With
this decision, the Court of Appeal confirmed once again the constitutional
validity of provisions of the French Charter requiring predominant or joint use
of French in Québec for product packaging, public signs, posters and commercial
advertising and publications, including websites. In its determination, the
Court specifically confirmed that websites aimed at conducting or promoting
business in the territory of Québec are subject to the French language
requirement of the French Charter.
While
the Court of Appeal upheld the SCC’s landmark rulings in Ford and Devine, if
evidence demonstrated that the French language situation in Québec had
fundamentally changed since the adoption of the French Charter, the Court would
have been justified in re-opening the constitutional debate of the provisions
in question.
The
Court, however, did leave the door open to new legal challenges when it
recognized that the language requirements could lead to a disadvantage in the
form of an additional economic burden for having to translate all signs and
publications into French. In this case the businesses did not bring forth any
proof, but the Court mentioned that such evidence could have been presented.
Le
texte intégral de la décision est disponible ici.
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