May 18, 2018
In the recent 156158 Canada Inc. v. Attorney General of Quebec decision, the Quebec Court of Appeal rejected appeals by defendants from findings of unlawful use of the English language contrary to the Charter of the French Language (Charter). The decision confirms that the Charter is still very relevant and, although it restricts freedom of expression and right to liberty, such restrictions are reasonable and justified under Law.
In the initial Quebec Court decision, the trial judge found numerous businesses in the Montreal area to be guilty of violations under the Charter all relating to use of English, such as commercial advertising (signage) where French was not markedly prominent, packaging in English with no French equivalent, and English websites with no French version.
The Charter provides that text on packaging and in commercial publications, such as websites, needs to be in French, although other languages, such as English, may appear as long as they are no more prominent than French. As for commercial signage, the Charter has since the early 90’s required it to be in French, with a version in another language being acceptable only if French was markedly predominant - for example, when the French text is twice the size as the version in another language. The original Charter provisions on public commercial signage permitted French only, but these were successfully challenged before the Supreme Court of Canada (SCC) as being contrary to Canada’s Charter of Rights and Freedoms and Quebec’s Charter of Human Rights and Freedoms, specifically the freedom of expression and right to equality. Markedly predominance of French on commercial signage was actually suggested by the SCC as a constitutionally valid alternative that would be justified in Quebec, where the vulnerability of the French language justified special protection.
Fast-forward to 2014, where the business defendants claimed before the Quebec Court that these restrictions were no longer justified because of the growth of French language usage since the ‘90s. They also claimed, referring to an old study that had concluded that the French language was not in jeopardy, that the SCC had actually based their prior decisions on outdated and incomplete data.
The Quebec Court rejected their arguments, as did the Superior Court on appeal, reiterating that the SCC’s prior decisions were binding precedents. Eleven of these businesses (Appellants) appealed the decision to the Québec Court of Appeal.
The Court of Appeal dismissed their appeal.
The Court of Appeal observed that requiring French text in addition to (and not instead of) any other languages and requiring greater visibility of French was proposed by the SCC, and followed by the Quebec legislature. And, as the Court of Appeal stated, it is not for the courts to criticize the legislature’s choices to follow these suggestions.
The Court of Appeal also observed that the Charter was a response to the Quebec Government’s assessment of the vulnerable state of the French language in Quebec. Since the visage linguistique (visual landscape) of Québec now shows the predominance of French in Quebec, the Charter is meeting its objective.
Further, this visage linguistique is not limited to outside signs. It can include commercial brochures, printed or in electronic form – such as websites.
The Appellants argued that the Charter imposed economic and psychological burdens on Anglophones, such that their right of equality was violated. The Court of Appeal did not accept their submission. The Charter does not prevent them from advertising with content of their choice, in their own language. Rather, it requires that a markedly predominant French version must be added if they advertise in another language than French.
As for the right to liberty, the Court of Appeal reiterated that companies are not protected by the right to liberty guaranteed by the Federal Charter of Rights and Freedoms and Quebec’s Charter of Human Rights and Freedoms. Moreover, as previously indicated, the Appellants may continue to use English to promote their goods and services – which also justified rejecting the Appellants’ claim that the Charter limitations restricted their right to peaceful enjoyment of private property.
The Charter therefore yet again survived a constitutional challenge to the requirement for French language usage, albeit permitting concurrent use of other languages in signage, on packaging and in commercial publications, provided that French is markedly predominant (signage) or at least as prominent (packaging and publications).
Interestingly, the Court of Appeal raised the possibility that there may be a disadvantage (such as extra translation, printing or website construction costs) for compliance with the Charter. However, the Appellants did not provide evidence of such a disadvantage before the trial court, so that argument was dismissed, leaving the possibility of a future argument that the economic burden of compliance constitutes discrimination, and violates the right to equality. Since that possibility was raised by the Court of Appeal, chances are it will be raised again with proper evidence in a near future. À suivre….
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