Supreme Court Judgments

ford v. quebec (a. g.), [1988] 2 S.C.R. 712

 

The Attorney General of Quebec                                                     Appellant

 

v.

 

La Chaussure Brown's Inc.                                                               Respondent

 

and

 

Valerie Ford                                                                                       Respondent

 

and

 

McKenna Inc.              Respondent

 

and

 

Nettoyeur et Tailleur Masson Inc.                                                   Respondent

 

and

 

La Compagnie de Fromage Nationale Ltée                                     Respondent

 

and

 

The Attorney General of Canada, the Attorney General for Ontario and the Attorney General for New Brunswick  Interveners

 

indexed as: ford v. quebec (attorney general)

 

File No.: 20306.

 

1987: November 16, 17, 18; 1988: December 15.

 

Present: Dickson C.J. and Beetz, Estey*, McIntyre, Lamer, Wilson and Le Dain^* JJ.

 

 

on appeal from the court of appeal for quebec

 

                   Constitutional law ‑‑ Charter of Rights  ‑‑ Application ‑‑ Exception where express declaration ‑‑ Provincial legislation requiring that public signs, commercial advertising and firm name should be in French only ‑‑ Whether provincial legislation protected from the application of s. 2(b)  of the Canadian Charter of Rights and Freedoms  by a valid and subsisting override provision ‑‑ Canadian Charter of Rights and Freedoms, s. 33  ‑‑ Charter of the French Language, R.S.Q., c. C‑11, ss. 58, 69, 214 ‑‑ An Act to amend the Charter of the French Language, S.Q. 1983, c. 56, s. 52 ‑‑ An Act respecting the Constitution Act, 1982 , S.Q. 1982, c. 21, ss. 1, 7.

 

                   Constitutional law ‑‑ Charter of Rights  ‑‑ Override provision ‑‑ Provincial legislation adding standard override provision to all provincial statutes enacted before June 23, 1982 ‑‑ Standard override provision given retrospective effect ‑‑ Whether standard override provisions enacted by provincial legislation valid ‑‑ Whether provincial legislation consistent with s. 33  of the Canadian Charter  ‑‑ Whether all the provisions in s. 2  and ss. 7  to 15  of the Canadian Charter  could be validly overridden by a single enactment ‑‑ Whether override provision may have a retrospective effect ‑‑ An Act respecting the Constitution Act, 1982 , S.Q. 1982, c. 21, ss. 1, 2, 7 ‑‑ Charter of the French Language, R.S.Q., c. C‑11, s. 214 ‑‑ An Act to amend the Charter of the French Language, S.Q. 1983, c. 56, s. 52.

 

                   Constitutional law ‑‑ Charter of Rights  ‑‑ Freedom of expression ‑‑ Provincial legislation requiring that public signs, commercial advertising and firm name should be in French only ‑‑ Whether freedom of expression guaranteed by s. 2(b)  of the Canadian Charter of Rights and Freedoms  includes the freedom to express oneself in the language of one's choice ‑‑ Whether the guarantee of freedom of expression extends to commercial expression ‑‑ Whether provincial legislation infringes the guarantee of freedom of expression ‑‑ Whether limit imposed by the provincial legislation on freedom of expression justifiable under s. 1  of the Canadian Charter  ‑‑ Whether a denial or negation of a guaranteed right or freedom could be a limit within s. 1 ‑‑ Charter of the French Language, R.S.Q., c. C‑11, ss. 58, 69.

 

                   Statutes ‑‑ Application ‑‑ Provincial human rights legislation ‑‑ Dates from which s. 3 of the Quebec Charter of Human Rights and Freedoms took precedence over the provisions of the other provincial statutes ‑‑ Charter of Human Rights and Freedoms, R.S.Q., c. C‑12, ss. 3, 52 ‑‑ An Act to amend the Charter of Human Rights and Freedoms, S.Q. 1982, c. 61, ss. 16, 34 ‑‑ Charter of the French Language, R.S.Q., c. C‑11, ss. 58, 69 ‑‑ An Act to amend the Charter of the French Language, S.Q. 1983, c. 56, s. 12.

 

                   Civil rights ‑‑ Provincial human rights legislation ‑‑ Freedom of expression ‑‑ Provincial legislation requiring that public signs, commercial advertising and firm name should be in French only ‑‑ Whether freedom of expression guaranteed by s. 3 of the Quebec Charter of Human Rights and Freedoms includes the freedom to express oneself in the language of one's choice ‑‑ Whether the guarantee of freedom of expression extends to commercial expression ‑‑ Whether provincial legislation infringes the guarantee of freedom of expression ‑‑ Whether limit imposed by the provincial legislation on freedom of expression justifiable under s. 9.1 of the Quebec Charter ‑‑ Charter of the French Language, R.S.Q., c. C‑11, ss. 58, 69.

 

                   Civil rights ‑‑ Discrimination based on language ‑‑ Provincial legislation requiring that public signs, commercial advertising and firm name should be in French only ‑‑ Whether provincial legislation infringes the guarantee against discrimination based on language in s. 10 of the Quebec Charter of Human Rights and Freedoms ‑‑ Charter of the French Language, R.S.Q., c. C‑11, ss. 58, 69.

 

                   In February 1984, the respondents sought a declaration from the Superior Court that ss. 58 and 69, and ss. 205 and 208 to the extent they applied thereto, of the Charter of the French Language, R.S.Q., c. C‑11, were inoperative and of no force of effect. Section 58 requires that "Public signs and posters and commercial advertising shall be solely in" French and s. 69 that ". . . only the French version of a firm name may be used in Québec". Sections 205 to 208 deal with the offences, penalties and other sanctions for a contravention of any of the provisions of the Charter of the French Language. The Superior Court allowed the motion in part and declared s. 58 to be inoperative. The Attorney General of Quebec appealed and respondents entered an incidental appeal against the failure of the Superior Court to declare ss. 69 and 205 to 208 inoperative. The Court of Appeal dismissed the appeal and allowed the incidental appeal. This appeal is to determine (1) whether ss. 58 and 69 infringe the freedom of expression guaranteed by s. 2( b )  of the Canadian Charter of Rights and Freedoms  and s. 3 of the Quebec Charter of Human Rights and Freedoms, R.S.Q., c. C‑12; and (2) whether ss. 58 and 69 infringe the guarantee against discrimination based on language in s. 10 of the Quebec Charter.

 

                   Held: The appeal should be dismissed. Sections 58 and 69 of the Charter of the French Language, and ss. 205 to 208 thereof to the extent they apply to ss. 58 and 69, infringe s. 3 of the Quebec Charter and are not justified under s. 9.1 of the Quebec Charter. Section 69, and ss. 205 to 208 to the extent they apply to s. 69, infringe s. 2( b )  of the Canadian  Charter  and are not justified by s. 1  of the Canadian  Charter . Sections 58 and 69 infringe s. 10 of the Quebec Charter.

 

(a) Application of Canadian Charter

 

                   Section 58 of the Charter of the French Language, replaced by s. 12 of An Act to amend the Charter of the French Language, S.Q. 1983, c. 56, is protected from the application of s. 2( b )  of the Canadian  Charter  by s. 52 of the amending Act ‑‑ proclaimed in force on February 1, 1984. Section 52 is a valid and subsisting override provision enacted pursuant to s. 33  of the Canadian  Charter . The essential requirement of form laid down by s. 33 is that there must be an express declaration that an Act or a provision of an Act shall operate notwithstanding a provision included in s. 2  or ss. 7  to 15  of the Canadian  Charter . A section 33 declaration is sufficiently express if it refers to the number of the section, subsection or paragraph of the Charter which contains the provision or provisions to be overridden. Of course, if a legislature intends to override only a part of a provision contained in a section then there would have to be a sufficient reference in words to the part to be overridden. Section 69 of the Charter of the French Language is not protected from the application of s. 2(b) since it was not affected by An Act to amend the Charter of the French Language.

 

                   Section 214 of the Charter of the French Language no longer protects s. 69 from the application of s. 2( b )  of the Canadian  Charter . Pursuant to s. 33(3)  of the Canadian  Charter , s. 214, enacted by s. 1 of An Act respecting the Constitution Act, 1982 , S.Q. 1982, c. 21, ceased to have effect on June 23, 1987, five years after the enacting Act came into force.

 

                   Section 1 of An Act respecting the Constitution Act, 1982 , which re‑enacted all of the Quebec statutes adopted before April 17, 1982 ‑‑ the date the Canadian  Charter  came into force ‑‑ with the addition in each of the standard override provision, was an effective exercise of legislative authority that did not prevent the override declaration so enacted in each statute from being an express declaration within the meaning of s. 33  of the Canadian  Charter . However, in providing that s. 1 should have effect from April 17, 1982, s. 7 of the Act gave retrospective effect to the override provision. This is contrary to s. 33  of the Canadian  Charter  which permits prospective derogation only. Section 7 is therefore to the extent of this inconsistency with s. 33  of the Canadian  Charter , of no force or effect, with the result that the standard override provisions enacted by s. 1 of that Act came into force on June 23, 1982 in accordance with the first paragraph of s. 7.

 

(b) Application of Quebec Charter

 

                   Sections 58 and 69 of the Charter of the French Language are both subject to s. 3 of the Quebec Charter of Human Rights and Freedoms. By operation of s. 52 of the Quebec Charter, as amended by s. 16 of An Act to amend the Charter of Human Rights and Freedoms, S.Q. 1982, c. 61, and of s. 34 of the amending Act, respecting the coming into force of s. 16 by proclamation, s. 3 of the Quebec Charter took precedence from October 1, 1983, the date the amending Act came into force by proclamation, over "Acts subsequent to that date" and from January 1, 1986 over "Acts preceding" October 1, 1983. The word "subsequent" in s. 34 refers to an enactment that is subsequent in time to October 1, 1983, regardless of its effect on existing legislation. As a result, s. 3 of the Quebec Charter was applicable to s. 58 of the Charter of the French Language from February 1, 1984 ‑‑ the date s. 58, as amended by s. 12 of An Act to amend the Charter of the French Language, S.Q. 1983, c. 56, was proclaimed in force ‑‑ and was applicable to s. 69 of the Charter of the French Language not later than January 1, 1986.

 

(c) Freedom of Expression

 

                   The "freedom of expression" guaranteed by s. 2( b )  of the Canadian  Charter  and s. 3 of the Quebec Charter 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 colours 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 s. 133  of the Constitution Act, 1867  and ss. 16  to 23  of the Canadian  Charter .

 

                   The expression contemplated by ss. 58 and 69 of the Charter of the French Language ‑‑ conveniently characterized as "commercial expression" ‑‑ is expression within the meaning of both s. 2( b )  of the Canadian  Charter  and s. 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‑fulfillment and personal autonomy. This leads to the conclusion that s. 58 infringes the freedom of expression guaranteed by s. 3 of the Quebec Charter and s. 69 infringes the guaranteed freedom of expression under both s. 2( b )  of the Canadian  Charter  and s. 3 of the Quebec Charter.

 

(d) Reasonable Limits

 

                   The material adduced in this Court did not justify the limit imposed on freedom of expression by ss. 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 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 ss. 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 s. 9.1 of the Quebec Charter and s. 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 s. 58 of the Charter of the French Language is not justified under s. 9.1 of the Quebec Charter, and the limit imposed on freedom of expression by s. 69 of the Charter of the French Language is not justified under either s. 1  of the Canadian  Charter  or s. 9.1 of the Quebec Charter. Section 9.1 is a justificatory provision corresponding to s. 1  of the Canadian  Charter  subject, in its application, to a similar test of rational connection and proportionality.

 

(e) Discrimination Based on Language

 

                   Under section 10 of the Quebec Charter, a "distinction, exclusion or preference" based on one of the grounds listed in s. 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 s. 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 deferentially 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 its differential effect or impact on persons according to their language of use, s. 58 creates a distinction based on language within the meaning of s. 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 s. 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 s. 10 of the Quebec Charter. The same conclusion applies to s. 69 of the Charter of the French Language.

 

Cases Cited

 

                   Applied: Forget v. Quebec (Attorney General), [1988] 2 S.C.R. 90; overturned: Alliance des professeurs de Montréal v. Procureur général du Québec, [1985] C.A. 376, rev'g [1985] C.S. 1272; distinguished: 23 Inhabitants of Alsemberg and Beersel v. Belgium (1963), 6 Yearbook of the European Convention on Human Rights 332; Inhabitants of Leeuw‑St. Pierre v. Belgium (1965), 8 Yearbook of the European Convention on Human Rights 338; X. v. Belgium (1965), 8 Yearbook of the European Convention on Human Rights 282; X. v. Ireland (1970), 13 Yearbook of the European Convention on Human Rights 792; Case "Relating to certain aspects of the laws on the use of languages in education in Belgium" (1968), 11 Yearbook of the European Convention on Human Rights 832; considered: Re Grier and Alberta Optometric Association (1987), 42 D.L.R. (4th) 327; Valentine v. Chrestensen, 316 U.S. 52 (1942); Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council Inc., 425 U.S. 748 (1976); Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, 447 U.S. 557 (1980); Posadas de Puerto Rico Associates v. Tourism Co. of Puerto Rico, 106 S.Ct. 2968 (1986); not followed: Re Klein and Law Society of Upper Canada (1985), 16 D.L.R. (4th) 489; referred to: Devine v. Procureur général du Québec, [1982] C.S. 355, aff'd [1987] R.J.Q. 50, rev'd in part [1988] 2 S.C.R. 790; Irwin Toy Ltd. v. Procureur général du Québec, [1986] R.J.Q. 2441; Gustavson Drilling (1964) Ltd. v. Minister of National Revenue, [1977] 1 S.C.R. 271; Reference re Manitoba Language Rights, [1985] 1 S.C.R. 721; MacDonald v. City of Montreal, [1986] 1 S.C.R. 460; Société des Acadiens du Nouveau‑Brunswick Inc. v. Association of Parents for Fairness in Education, [1986] 1 S.C.R. 549; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; R. v. Oakes, [1986] 1 S.C.R. 103; R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713; RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573; Attorney General of Quebec v. Quebec Association of Protestant School Boards, [1984] 2 S.C.R. 66, aff'g [1983] C.A. 77, aff'g [1982] C.S. 673; R. v. Morgentaler, [1988] 1 S.C.R. 30; Law Society of Upper Canada v. Skapinker, [1984] 1 S.C.R. 357; Hunter v. Southam Inc., [1984] 2 S.C.R. 145; Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177; Ontario Human Rights Commission and O'Malley v. Simpsons‑Sears Ltd., [1985] 2 S.C.R. 536; Bhinder v. Canadian National Railway Co., [1985] 2 S.C.R. 561.

 

Statutes and Regulations Cited

 

Act respecting the Constitution Act, 1982 , S.Q. 1982, c. 21, ss. 1, 2, 5, 6, 7.

 

Act to amend the Charter of Human Rights and Freedoms, S.Q. 1982, c. 61, ss. 2, 3, 16, 34.

 

Act to amend the Charter of the French Language, S.Q. 1983, c. 56, ss. 12, 52.

 

Canadian Charter of Rights and Freedoms , ss. 1 , 2( b ) , 7  to 15 , 16  to 23 , 24(1) , 33 .

 

Charter of Human Rights and Freedoms, R.S.Q., c. C‑12, ss. 3, 9.1 [en. 1982, c. 61, s. 2], 10 [am. 1978, c. 7, s. 112; am. 1980, c. 11, s. 34; am. 1982, c. 61, s. 3], 51, 52 [repl. 1982, c. 61, s. 16].

 

Charter of the French Language, R.S.Q., c. C‑11, ss. 1, 58 [repl. 1983, c. 56, s. 12], 69, 89, 205 [am. 1986, c. 58, s. 15], 206 [am. 1986, c. 58, s. 16], 207, 208, 209, 214 [en. 1982, c. 21, s. 1].

 

Code of Civil Procedure, R.S.Q., c. C‑25, art. 454, 507 [am. 1979, c. 37, s. 24; repl. 1982, c. 32, s. 44].

 

Constitution Act, 1867 , s. 133 .

 

Constitution Act, 1982 , s. 52 .

 

Consumer Protection Act, R.S.Q., c. P‑40.1, s. 364 [en. 1982, c. 21, s. 1].

 

Interpretation Act, R.S.C. 1970, c. I‑23, s. 36(f).

 

Interpretation Act, R.S.Q., c. I‑16, s. 13.

 

Supreme Court Act, R.S.C. 1970, c. S‑19, s. 67.

 

Authors Cited

 

Côté, Pierre‑André. The Interpretation of Legislation in Canada. Translated by Katherine Lippel, John Philpot and Bill Schabas. Cowansville: Yvon Blais Inc., 1984.

 

Emerson, Thomas I. "Toward a General Theory of the First Amendment" (1963), 72 Yale L.J. 877.

 

Fishman, Joshua A. The Sociology of Language: An Interdisciplinary Social Approach to Language in Society. Rowley, Mass.: Newbury House Publishers, 1972.

 

Jackson, Thomas H. and John Calvin Jeffries. "Commercial Speech: Economic Due Process and the First Amendment" (1979), 65 Va. L. Rev. 1.

 

Kurland, Philip B. "Posadas de Puerto Rico v. Tourism Company: " 'Twas Strange; 'Twas Passing Strange; 'Twas Pitiful, 'Twas Wondrous Pitiful'," [1986] Sup. Ct. Rev. 1.

 

Langlois, Raynold. "Les clauses limitatives des Chartes canadienne et québécoise des droits et libertés et le fardeau de la preuve". Dans Perspectives canadiennes et européennes des droits de la personne. Sous la direction de Daniel Turp et de Gérald A. Beaudoin. Cowansville: Yvon Blais Inc., 1986, pp. 159 à 186.

 

Lively, Donald E. "The Supreme Court and Commercial Speech: New Words with an Old Message" (1987), 72 Minn. L. Rev. 289.

 

Sharpe, Robert J. "Commercial Expression and the Charter" (1987), 37 U. of T.L.J. 229.

 

"The Supreme Court‑‑Leading Cases" (1986), 100 Harv. L. Rev. 100.

 

Weinberg, Jonathan. "Constitutional Protection of Commercial Speech" (1982), 82 Colum. L. Rev. 720.

 

                   APPEAL from a judgment of the Quebec Court of Appeal, [1987] R.J.Q. 80, 5 Q.A.C. 119, 36 D.L.R. (4th) 374, dismissing appellant's appeal from a judgment of Boudreault J., [1985] C.S. 147, 18 D.L.R. (4th) 711, granting in part respondents' application for a declaration that certain sections of the Charter of the French Language are inoperative. Appeal dismissed.

 

                   Yves de Montigny, André Tremblay and Ri­chard Tardif, for the appellant.

 

                   Harvey Yarosky and Allan R. Hilton, for the respondents.

 

                   Georges Emery, Q.C., and André Bluteau and René LeBlanc, for the intervener the Attorney General of Canada.

 

                   Lorraine Weinrib, for the intervener the Attorney General for Ontario.

 

                   Grant S. Garneau, for the intervener the Attorney General for New Brunswick.

 

                   The following is the judgment delivered by

 

1.                       The Court‑‑The principal issue in this appeal is whether ss. 58 and 69 of the Quebec Charter of the French Language, R.S.Q., c. C‑11, which require that public signs and posters and commercial advertising shall be in the French language only and that only the French version of a firm name may be used, infringe the freedom of expression guaranteed by s. 2(b) of the Canadian Char­ter of Rights and Freedoms and s. 3 of the Quebec Charter of Human Rights and Freedoms, R.S.Q., c. C‑12. There is also an issue as to whether ss. 58 and 69 of the Charter of the French Language infringe the guarantee against discrimination based on language in s. 10 of the Quebec Charter of Human Rights and Freedoms. The application of the Canadian Charter of Rights and Freedoms  turns initially on whether there is a valid and applicable override provision, enacted pursuant to s. 33  of the Canadian  Charter , that ss. 58 and 69 of the Charter of the French Language shall operate notwithstanding s. 2( b )  of the Canadian  Charter .

 

2.                       The appeal is by leave of this Court from the judgment of the Quebec Court of Appeal on December 22, 1986, [1987] R.J.Q. 80, 5 Q.A.C. 119, 36 D.L.R. (4th) 374, dismissing the appeal of the Attorney General of Quebec from the judgment of Boudreault J. in the Superior Court for the District of Montreal on December 28, 1984, [1985] C.S. 147, 18 D.L.R. (4th) 711, which, on an application for a declaratory judgment, declared s. 58 of the Charter of the French Language to be inoperative to the extent that it prescribes that public signs and posters and commercial advertising shall be solely in the French language. The appeal is also from the judgment of the Court of Appeal in so far as it allowed the incidental appeal of the respondents from the judgment of Boudreault J. and declared s. 69 of the Charter of the French Language to be inoperative to the extent that it prescribes that only the French version of a firm name may be used. In allowing the incidental appeal the Court of Appeal also declared ss. 205 to 208 of the Charter of the French Language respecting offences, penalties and other sanctions for a contravention of any of its provisions to be inoperative in so far as they apply to ss. 58 and 69.

 

                                                                     I

 

The Respondents' Application for a Declaratory Judgment

 

3.                       On February 15, 1984 the respondents brought a motion for a declaratory judgment pursuant to art. 454 of the Quebec Code of Civil Procedure and s. 24(1)  of the Canadian Charter of Rights and Freedoms . The commercial advertising and signs displayed by the five respondents are described in paragraphs 1 to 5 of their petition as follows:

 

1. La Chaussure Brown's Inc. ("Brown's") operates a business of retail shoe stores throughout the Province of Quebec, and since at least September 1, 1981, it has used and displayed within and on its premises of its store situated in the Fairview Shopping Centre, 6801 Trans‑Canada Highway, Pointe‑Claire, commercial advertising containing the following words:

 

bravo             bravo  

"Brown's quality.     "La qualité

                    Bravo. price."                                                                   à tout prix"

 

2. Valerie Ford, carrying on business under the firm name and style of Les Lainages du Petit Mouton Enr. ("Ford"), operates a retail store selling, inter alia, wool, and since at least September 1, 1981, she has used and displayed on her premises at 311 St. Johns Boulevard, Pointe‑Claire, an exterior sign containing the following words:

 

"laine              wool"   

 

3. Nettoyeur et Tailleur Masson Inc. ("Nettoyeur Masson") carries on the business of a tailor and dry cleaner, and since at least September 1, 1981, it has used and displayed on its premises at 3259 Masson Street, Mont‑ real an exterior sign containing the following words:

 

nettoyeurs Masson cleaners tailleur                                          Inc.   tailor

                   service                                                                                alterations

                     heure                                                                         

                   1                                                                                              repairs

                     hour

 

4. McKenna Inc. ("McKenna") carries on business as a florist in the City of Montreal and since at least September 1, 1981, it has used and displayed on its premises at 4509 Côte Des Neiges Road, Montreal, an exterior sign containing the following words:

 

                               "Fleurs mckenna Flowers"

 

5. La Compagnie de Fromage Nationale Ltée ("Fro­mage Nationale") carries on the business of a cheese distributor and since at least September 1, 1981, it has used and displayed on its premises at 9001 Salley Street, Ville LaSalle, exterior signs containing the following words:

 

"national cheese                  La Cie de fromage

                         Co Ltd.                       nationale Ltée"

 

4.                       The petition further alleges that the respondents La Chaussure Brown's Inc., Valerie Ford and La Compagnie de Fromage Nationale Ltée received a mise en demeure from the Commission de surveillance de la langue française advising them that their signs were not in conformity with the provisions of the Charter of the French Language and calling on them to conform to such provisions and that the respondents McKenna Inc. and Nettoyeur et Tailleur Masson Inc. were charged with violation of the Charter of the French Language.

 

5.                       The respondents conclude in their petition for a declaration that they have the right, notwithstanding ss. 58, 69 and 205 to 208 of the Charter of the French Language, to use the signs, posters and commercial advertising described in their petition and a declaration that ss. 58 and 69 and ss. 205 to 208, as they apply to ss. 58 and 69 of the Charter of the French Language, are inoperative and of no force or effect.

 

                                                                    II

 

The Relevant Legislative and Constitutional Provisions

 

6.                       To facilitate an understanding of the issues in the appeal, as they are reflected in the reasons for judgment of the Superior Court and the Court of Appeal and in the constitutional questions and submissions of the parties in this Court, it is desirable at this point to set out the relevant legislative and constitutional provisions.

 

A.                The Charter of the French Language

 

7.                       Sections 1, 58, 69, 89, 205, 206, 207 and 208 of the Charter of the French Language, R.S.Q., c. C‑11, provide:

 

                   1. French is the official language of Québec.

 

58. Public signs and posters and commercial advertising shall be solely in the official language.

 

                   Notwithstanding the foregoing, in the cases and under the conditions or circumstances prescribed by regulation of the Office de la langue française, public signs and posters and commercial advertising may be both in French and in another language or solely in another language.

 

69. Subject to section 68, only the French version of a firm name may be used in Québec.

 

89. Where this act does not require the use of the official language exclusively, the official language and another language may be used together.

 

205. Every person who contravenes a provision of this act other than section 136 or of a regulation made under this act by the Gouvernement or by the Office de la langue française is guilty of an offence and liable, in addition to costs,

 

                   (a) for each offence, to a fine of $30 to $575 in the case of a natural person, and of $60 to $1150 in the case of an artificial person.

 

                   (b) for any subsequent offence within two years of a first offence, to a fine of $60 to $1150 in the case of a natural person, and of $575 to $5750 in the case of an artificial person.

 

206. A business firm guilty of an offence contemplated in section 136 is liable, in addition to costs, to a fine of $125 to $2300 for each day during which it carries on its business without a certificate.

 

207. The Attorney General or the person authorized by him shall institute, by way of summary proceedings, the prosecutions provided for by this act and shall exercise the recourses necessary for its application.

 

208. Any court of civil jurisdiction, on a motion by the Attorney General, may order the removal or destruction at the expense of the defendant, within eight days of the judgment, of any poster, sign, advertisement, bill‑board or illuminated sign not in conformity with this act.

 

                   The motion may be directed against the owner of the advertising equipment or against whoever placed the poster, sign, advertisement, bill‑board or illuminated sign or had it placed.

 

B.                The Quebec Charter of Human Rights and Freedoms

 

8.                       Sections 3, 9.1 and 10 of the Quebec Charter of Human Rights and Freedoms, R.S.Q., c. C‑12, provide:

 

3. Every person is the possessor of the fundamental freedoms, including freedom of conscience, freedom of religion, freedom of opinion, freedom of expression, freedom of peaceful assembly and freedom of association.

 

9.1 In exercising his fundamental freedoms and rights, a person shall maintain a proper regard for democratic values, public order and the general well‑being of the citizens of Québec.

 

                   In this respect, the scope of the freedoms and rights, and limits to their exercise, may be fixed by law.

 

10. Every person has a right to full and equal recognition and exercise of his human rights and freedoms, without distinction, exclusion or preference based on race, colour, sex, pregnancy, sexual orientation, civil status, age except as provided by law, religion, political convictions, language, ethnic or national origin, social condition, a handicap or the use of any means to palliate a handicap.

 

                   Discrimination exists where such a distinction, exclusion or preference has the effect of nullifying or impairing such right.

 

9.                       Sections 51 and 52 of the Quebec Charter of Human Rights and Freedoms, R.S.Q., c. C‑12, provide:

 

51. The Charter shall not be so interpreted as to extend, limit or amend the scope of a provision of law except to the extent provided in section 52.

 

52. No provision of any Act, even subsequent to the Charter, may derogate from sections 1 to 38 , except so far as provided by those sections, unless such Act expressly states that it applies despite the Charter.

 

10.                     Prior to its amendment by s. 16 of An Act to amend the Charter of Human Rights and Freedoms, S.Q. 1982, c. 61, s. 52 of the Quebec Charter read as follows:

 

                   52. Sections 9 to 38 prevail over any provision of any subsequent act which may be inconsistent therewith unless such act expressly states that it applies despite the Charter.

 

11.                     Section 34 of An Act to amend the Charter of Human Rights and Freedoms provided for the coming into force of s. 16, which enacted s. 52 in its present form, by proclamation as follows:

 

                   34. Section 16 of this Act will come into force on the date fixed by proclamation of the Government, and section 52 of the Charter of human rights and freedoms, enacted by such section 16, will have effect from that date in respect of the precedence of sections 1 to 8 of that Charter over Acts subsequent to that date.

 

                   Concerning the precedence of sections 1 to 8 over Acts preceding the date fixed by proclamation contemplated in the first paragraph, and the precedence of sections 9 to 38 over Acts preceding 27 June 1975, section 52 will have effect from the date fixed by another proclamation of the Government or not later than 1 January 1986.

 

                   However, concerning the precedence of sections 9 to 38 over Acts subsequent to 27 June 1975, section 52 has effect from that date.

 

12.                     Section 16 was proclaimed in force on October 1, 1983, (1983) 115 O.G. II 3437 (No. 42, 5/10/83). The order in council stated the effect on the application of s. 52 of the Quebec Charter, as amended, to be as follows in accordance with the provisions of s. 34 of the amending Act:

 

                   In keeping with section 34 of that Act, section 16 will come into force by this proclamation on October 1, 1983, and section 52 of the Charter of human rights and freedoms, enacted by such section 16, will have effect from that date in respect of the precedence of sections 1 to 8 of that Charter over Acts subsequent to that date.

 

                   Concerning the precedence of sections 1 to 8 over Acts preceding October 1, 1983, and the precedence of sections 9 to 38 over Acts preceding June 27, 1975, section 52 will have effect from the date fixed by another proclamation of the Government or not later than January 1, 1986.

 

                   However, concerning the precedence of sections 9 to 38 over Acts subsequent to June 27, 1975, section 52 has effect from that date.

 

C.                The Canadian Charter of Rights and Freedoms  and the Constitution Act, 1982 

 

13.                     Sections 1  and 2( b )  of the Canadian Charter of Rights and Freedoms  and s. 52(1)  of the Constitution Act, 1982  provide:

 

                   1. The Canadian Charter of Rights and Freedoms  guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

 

                   2. Everyone has the following fundamental freedoms:

 

                                                                    ...

 

(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;

 

                   52. (1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.

 

D.                The Provisions of the Canadian Charter  and the Quebec Statutes Respecting the Legislative Override of Rights or Freedoms Guaranteed by the Canadian Charter 

 

14.                     Section 33  of the Canadian Charter of Rights and Freedoms  provides:

 

                   33. (1) Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter.

 

                   (2) An Act or a provision of an Act in respect of which a declaration made under this section is in effect shall have such operation as it would have but for the provision of this Charter referred to in the declaration.

 

                   (3) A declaration made under subsection (1) shall cease to have effect five years after it comes into force or on such earlier date as may be specified in the declaration.

 

                   (4) Parliament or the legislature of a province may re‑enact a declaration made under subsection (1).

 

                   (5) Subsection (3) applies in respect of a re‑enactment made under subsection (4).

 

15.                     Sections 1, 2, 5, 6 and 7 of An Act respecting the Constitution Act, 1982, S.Q. 1982, c. 21, which was assented to on June 23, 1982, provide:

 

                   1. Each of the Acts adopted before 17 April 1982 is replaced by the text of each of them as they existed at that date, after being amended by the addition, at the end and as a separate section, of the following:

 

                   "This Act shall operate notwithstanding the provisions of sections 2  and 7  to 15  of the Constitution Act, 1982  (Schedule B of the Canada Act, chapter 11 in the 1982 volume of the Acts of the Parliament of the United Kingdom)."

 

                   The text so amended of each of these Acts constitutes a separate Act.

 

                   No such Act is to be construed as new law except for the purposes of section 33  of the Constitution Act, 1982 ; for all other purposes, it has force of law as if it were a consolidation of the Act it replaces.

 

                   Every provision of such an Act shall have effect from the date the provision it replaces took effect or is to take effect.

 

                   Such an Act must be cited in the same manner as the Act it replaces.

 

                   2. Each of the Acts adopted between 17 April 1982 and 23 June 1982 is replaced by the text of each of them as they existed on 23 June 1982, after being amended by the addition, at the end and as a separate section, of the derogatory provision set out in the first paragraph of section 1.

 

                   The second, third, fourth and fifth paragraphs of section 1 apply, mutatis mutandis, to the Acts referred to in the first paragraph.

 

                   5. This Act shall operate notwithstanding the provisions of sections 2  and 7  to 15  of the Constitution Act, 1982 .

 

                   6. The sanction of this Act is valid for each of the Acts enacted under section 1 or 2.

 

                   7. This Act comes into force on the day of its sanction.

 

                   However, section 1 and the first paragraph of section 3 have effect from 17 April 1982; section 2 and the second paragraph of section 3 have effect from the date from which each of the Acts replaced under section 2 came into force.

 

16.                     Section 1 of An Act respecting the Constitution Act, 1982 enacted s. 214 of the Charter of the French Language, which provides:

 

214. This Act shall operate notwithstanding the provisions of sections 2  and 7  to 15  of the Constitution Act, 1982  (Schedule B of the Canada Act, chapter 11 in the 1982 volume of the Acts of the Parliament of the United Kingdom).

 

17.                     Sections 12 and 52 of An Act to amend the Charter of the French Language, S.Q. 1983, c. 56, which was assented to on December 22, 1983 and proclaimed in force on February 1, 1984, (1984) 116 O.G. II 1087 (No. 8, 15/2/84), provide:

 

                   12. Section 58 of the said Charter is replaced by the following section:

 

                   "58. Public signs and posters and commercial advertising shall be solely in the official language.

 

                   Notwithstanding the foregoing, in the cases and under the conditions or circumstances prescribed by regulation of the Office de la langue française, public signs and posters and commercial advertising may be both in French and in another language or solely in another language."

 

                   52. This Act shall operate notwithstanding the provisions of sections 2  and 7  to 15  of the Constitution Act, 1982  (Schedule B of the Canada Act, chapter 11 in the 1982 volume of the Acts of the Parliament of the United Kingdom).

 

                                                                   III

 

The Judgments of the Superior Court and the Court of Appeal

 

18.                     In the Superior Court, Boudreault J. held that the guarantee of freedom of expression in s. 2( b )  of the Canadian Charter of Rights and Freedoms  did not apply to ss. 58 and 69 of the Charter of the French Language because of the override provision in s. 214 thereof. In assuming s. 214 to be a valid declaration of override in conformity with s. 33 of the Canadian Charter of Rights and Freedoms Boudreault J. applied the judgment of Deschênes C.J. on this issue in Alliance des professeurs de Montréal v. Procureur général du Québec, [1985] C.S. 1272. Boudreault J. further held, for the reasons given by Dugas J. in Devine v. Procureur général du Québec, [1982] C.S. 355, that neither s. 58 nor s. 69 of the Charter of the French Language infringed the guarantee against discrimination based on language in s. 10 of the Quebec Charter of Human Rights and Freedoms. With respect to the application of the guarantee of freedom of expression in s. 3 of the Quebec Char­ter, Boudreault J. held that by operation of s. 52, as amended, of the Quebec Charter, s. 3 took precedence over s. 58 of the Charter of the French Language from February 1, 1984, but that it did not yet take precedence over s. 69. Applying section 3, he held that freedom of expression included the freedom to express oneself in the language of one's choice and that it extended to commercial expression. Finally he held that because it prohibited the use of any language other than French rather than merely requiring that French be used with any other language, s. 58 infringed the freedom of expression guaranteed by s. 3 of the Quebec Charter and was not saved by s. 9.1 thereof. He declared s. 58 of the Charter of the French Language to be inoperative in so far as it prescribes that public signs and posters and commercial advertising shall be solely in French.

 

19.                     The Attorney General of Quebec appealed against this judgment. The respondents entered an incidental appeal against the failure of the Superior Court to declare s. 69 and ss. 205 to 208 of the Charter of the French Language inoperative. The Court of Appeal (Montgomery, Paré, Monet, Bisson and Chouinard JJ.A.) unanimously dismissed the appeal and allowed the incidental appeal. The conclusions of the judgment of Bisson J.A. (as he then was), with whom the other members of the Court concurred, may be summarized as follows. Section 2( b )  of the Canadian Charter of Rights and Freedoms  applied to ss. 58 and 69 of the Charter of the French Language because, as was held by the Court of Appeal in Alliance des professeurs de Montréal v. Procureur général du Québec, [1985] C.A. 376, reversing the Superior Court, the standard override provision in Quebec legislation, which declared that a statute shall operate notwithstanding the provisions of s. 2  and ss. 7  to 15  of the Canadian Charter of Rights and Freedoms , was ultra vires and null as not being in conformity with s. 33  of the Canadian  Charter . It was preferable, however, in view of the fact that the judgment of the Court of Appeal in Alliance des professeurs was under appeal to this Court to consider first the challenge to ss. 58 and 69 of the Charter of the French Language based on ss. 3 and 10 of the Quebec Charter of Human Rights and Freedoms. Sections 58 and 69 did not infringe the guarantee against discrimination based on language in s. 10 of the Quebec Charter for the reasons given in Devine v. Procureur général du Québec, [1987] R.J.Q. 50 (C.A.), at pp. 67‑69. In so far as the guarantee of freedom in s. 3 of the Quebec Charter was concerned, s. 3 took precedence over s. 58 of the Charter of the French Language from January 1, 1986 and not from February 1, 1984, as was held by the trial judge. Freedom of expression included freedom to express oneself in the language of one's choice and extended to commercial expression. The prohibition in s. 58 of the Charter of the French Language of the use of any language other than French infringed the freedom of expression guaranteed by s. 3 of the Quebec Charter and was not saved by s. 9.1 thereof. For the same reasons s. 58 infringed the freedom of expression guaranteed by s. 2( b )  of the Canadian Charter of Rights and Freedoms  and was not saved by s. 1 thereof. The same conclusions had to be applied to s. 69 of the Charter of the French Language over which s. 3 of the Quebec Charter of Human Rights and Freedoms took precedence from January 1, 1986. In dismissing the appeal, the Court of Appeal declared s. 58 of the Charter of the French Language, in so far as it prescribed that public signs and posters and commercial advertising shall be solely in French, to be inoperative from January 1, 1986 by reason of the Quebec Charter of Human Rights and Freedoms and from April 17, 1982 by reason of the Canadian Charter of Rights and Freedoms . In allowing the incidental appeal, the Court declared s. 69 of the Charter of the French Language, in so far as it prescribed that only the French version of a firm name may be used, and ss. 205 to 208 of the Charter of the French Language, in so far as they applied to ss. 58 and 69 thereof, to be inoperative from January 1, 1986 by reason of the Quebec Charter of Human Rights and Freedoms and from April 17, 1982 by reason of the Canadian Charter of Rights and Freedoms .

 

                                                                   IV

 

The Constitutional Questions and the Issues in the Appeal

 

20.                     On the appeal to this Court the following constitutional questions were stated by Lamer J. in his order of May 11, 1987:

 

1. Are section 214 of the Charter of the French Language, R.S.Q. 1977, c. C‑11, as enacted by S.Q. 1982, c. 21, s. 1, and s. 52 of An Act to amend the Charter of the French Language, S.Q. 1983, c. 56, inconsistent with s. 33(1)  of the Constitution Act, 1982  and therefore inoperative and of no force or effect under s. 52(1) of the latter Act?

 

2. If the answer to question 1 is affirmative, to the extent that they require the exclusive use of the French language, are ss. 58 and 69, and ss. 205 to 208 to the extent they apply thereto, of the Charter of the French Language, R.S.Q. 1977, c. C‑11, as amended by S.Q. 1983, c. 56, inconsistent with the guarantee of freedom of expression under s. 2( b )  of the Canadian Charter of Rights and Freedoms ?

 

3. If the answer to question 2 is affirmative in whole or in part, are ss. 58 and 69, and ss. 205 to 208 to the extent they apply thereto, of the Charter of the French Language, R.S.Q. 1977, c. C‑11, as amended by S.Q. 1983, c. 56, justified by the application of s. 1  of the Canadian Charter of Rights and Freedoms  and therefore not inconsistent with the Constitution Act, 1982 ?

 

21.                     The issues in the appeal, as reflected in the above constitutional questions, the reasons for judgment of the Superior Court and the Court of Appeal and the submissions in this Court, may be summarized as follows:

 

1. Is section 58 or s. 69 of the Charter of the French Language protected from the application of s. 2( b )  of the Canadian Charter of Rights and Freedoms  by a valid and applicable override provision enacted in conformity with s. 33  of the Canadian  Charter ?

 

2. What are the dates from which s. 3 of the Quebec Charter of Human Rights and Freedoms took precedence, in case of conflict, over ss. 58 and 69 of the Charter of the French Language?

 

3. Does the freedom of expression guaranteed by s. 2( b )  of the Canadian  Charter  and by s. 3 of the Quebec Charter include the freedom to express oneself in the language of one's choice?

 

4. Does the freedom of expression guaranteed by s. 2( b )  of the Canadian  Charter  and s. 3 of the Quebec Charter extend to commercial expression?

 

5. If the requirement of the exclusive use of French by ss. 58 and 69 of the Charter of the French Language infringes the freedom of expression guaranteed by s. 2( b )  of the Canadian  Charter  and s. 3 of the Quebec Charter, is the limit on freedom of expression imposed by ss. 58 and 69 justified under s. 1  of the Canadian  Charter  and s. 9.1 of the Quebec Charter?

 

6. Do sections 58 and 69 of the Charter of the French Language infringe the guarantee against discrimination based on language in s. 10 of the Quebec Charter of Human Rights and Freedoms?

 

22.                     Submissions with respect to the validity and application of the override provisions in issue, as well as the content of freedom of expression and the effect of s. 1  of the Canadian  Charter  and s. 9.1 of the Quebec Charter, were also made in the appeals in Devine v. Quebec (Attorney General), [1988] 2 S.C.R. 790, and Irwin Toy Ltd. v. Quebec (Attorney General), S.C.C., No. 20074, which were heard at the same time as this appeal. They will necessarily be taken into consideration in disposing of the issues in this appeal.

 

                                                                    V

 

Is Section 58 or s. 69 of the Charter of the French Language Protected from the Application of s. 2( b )  of the Canadian Charter of Rights and Freedoms  by a Valid and Applicable Override Provision Enacted in Conformity with s. 33  of the Canadian  Charter ?

 

23.                     As indicated in Part II of these reasons, which quotes the relevant legislative and constitutional provisions, and in the first constitutional question, there are two override provisions in issue: (a) s. 214 of the Charter of the French Language, which was enacted by s. 1 of An Act respecting the Constitution Act, 1982, S.Q. 1982, c. 21; and (b) s. 52 of An Act to amend the Charter of the French Language, S.Q. 1983, c. 56. The two override provisions are in identical terms, reading as follows: "This Act shall operate notwithstanding the provisions of sections 2  and 7  to 15  of the Constitution Act, 1982  (Schedule B of the Canada Act, chapter 11 in the 1982 volume of Acts of Parliament of the United Kingdom)." The issue of validity that is common to both s. 214 and s. 52 is whether a declaration in this form is one that is made in conformity with the override authority conferred by s. 33  of the Canadian Charter of Rights and Freedoms . There are additional issues of validity applicable to s. 214 of the Charter of the French Language arising from the manner of its enactment, that is, the "omnibus" character of the Act which enacted it, and from the retrospective effect given to s. 214 by s. 7 of the Act, which has been quoted above.

 

24.                     Section 214 of the Charter of the French Language ceased to have effect by operation of s. 33(3)  of the Canadian Charter of Rights and Freedoms  five years after it came into force, and it was not re‑enacted pursuant to s. 33(4)  of the Charter. If the retrospective effect to April 17, 1982 given to s. 214 by s. 7 of An Act respecting the Constitution Act, 1982, was valid, s. 214 ceased to have effect on April 17, 1987. If not, it ceased to have effect on June 23, 1987, which was five years after the enacting Act came into force on the day of its sanction. In either case the question of the validity of s. 214 is moot, on the assumption, which was the one on which the appeal was argued, that on an application for a declaratory judgment in a case of this kind the Court should declare the law as it exists at the time of its judgment. We were, nevertheless, invited by the parties in this appeal and the appeals that were heard at the same time to rule on the validity of the standard override provision as enacted by An Act respecting the Constitution Act, 1982, because of the possible significance of that issue in cases pending before other tribunals. Before considering how the Court should respond to that invitation we propose to consider the other override provision in issue which, as we have said, raises a common question of validity.

 

25.                     Section 52 of An Act to amend the Charter of the French Language, which was proclaimed in force on February 1, 1984, will not cease to have effect by operation of s. 33(3)  of the Canadian Charter of Rights and Freedoms  until February 1, 1989. It is therefore necessary to consider its validity since the Attorney General of Quebec contends that it protects s. 58 of the Charter of the French Language from the application of s. 2( b )  of the Canadian Charter of Rights and Freedoms . The respondents in this appeal contend that s. 52 is of no force or effect because it is an override declaration that was not made in conformity with s. 33  of the Canadian  Charter , but the appellant Singer in Devine also raised an issue concerning the application of s. 52, contending that it should not be construed as intending to apply to s. 58, as amended, of the Charter of the French Language. That contention will be dealt with before turning to the question of the validity of the standard override provision contained in s. 52.

 

26.                     The appellant Singer in Devine, supported by the Attorney General of Canada, submitted that s. 52 applies only to the enacting words of An Act to amend the Charter of the French Language and not to the provisions of the Charter of the French Language, including s. 58, that were amended by it, and that it could not have been intended that s. 52, which came into force before s. 214 ceased to have effect, should extend the protection of some provisions of the Charter of the French Language, but not others, from the application of the Canadian Charter of Rights and Freedoms  beyond the date on which s. 214 would cease to have effect. These contentions are without merit. Section 52 would have no purpose or effect if it applied only to the enacting words of An Act to amend the Charter of the French Language, for example, to the opening words of s. 12 thereof, "Section 58 of the said Charter is replaced by the following...." and not to s. 58, as amended by s. 12 . The words "This Act shall operate . . ." in s. 52 must mean the whole of what is enacted or has operational effect by the enactment. In so far as the relationship of s. 52 to s. 214 of the Charter of the French Language is concerned, s. 52 appears to have been enacted as part of the well‑established legislative policy and practice at the time of including the standard override provision in every Quebec statute. It was enacted before the override provision in s. 214 of the Charter of the French Language ceased to have effect. It is a separate override provision, unconnected with s. 214. There is no basis for speculation as to whether, at the time of its enactment, the legislature could have intended that s. 52 should continue to have effect with respect to certain provisions of the Charter of the French Language after s. 214 ceased to have effect. There was no reason to assume at that time that s. 214 would not be re‑enacted pursuant to s. 33(4)  of the Canadian Charter of Rights and Freedoms . Section 52 of An Act to amend the Charter of the French Language therefore purports to apply to s. 58 of the Charter of the French Language, as amended, so that if valid, s. 52 must be given its full effect for the five‑year period specified in s. 33(3)  of the Canadian  Charter .

 

27.                     Those who challenged the constitutionality of the override provisions in s. 214 of the Charter of the French Language and s. 52 of An Act to amend the Charter of the French Language placed particular reliance on the judgment of the Quebec Court of Appeal in Alliance des professeurs de Montréal v. Procureur général du Québec, supra, in which the Court of Appeal held that the standard override provision was ultra vires and null as not being in conformity with the authority conferred by s. 33  of the Canadian Charter of Rights and Freedoms . As indicated above, the judgment in Alliance des professeurs was applied by the Court of Appeal in the case at bar. Leave to appeal to this Court from the judgment of the Court of Appeal in Alliance des professeurs was granted on September 30, 1985, but at the time of the hearing of this appeal the Attorney General of Quebec had not yet inscribed in appeal. We were informed by counsel for the Attorney General that it had been decided not to proceed with the appeal, at least for the time being, because of the precedence given to the hearing of this appeal and the appeals in Devine and Irwin Toy. Because, however, of the reliance placed by the parties in these three appeals on the reasoning of the Superior Court and the Court of Appeal in Alliance des professeurs, the Court cannot avoid consideration of that case in this appeal.

 

28.                     In that case the petitioners, Alliance des professeurs de Montréal, sought declarations that s. 1 and other provisions of An Act respecting the Constitution Act, 1982, which purported to add the standard override provision to all provincial legislation enacted up to June 23, 1982, and the standard override provisions enacted in some forty‑nine statutes after that date were ultra vires and null as not being in conformity with s. 33  of the Canadian Charter of Rights and Freedoms . Thus the petitioners put in issue not only the validity of the standard override provision as enacted by the "omnibus" Act respecting the Constitution Act, 1982, but also its validity as separately enacted in particular statutes. The reasoning and conclusions of the Superior Court and the Court of Appeal in Alliance des professeurs are therefore relevant to the question of the validity of the override provision in s. 52 of An Act to amend the Charter of the French Language as well as to the question of the validity of the override provision in s. 214 of the Charter of the French Language. Indeed, the issue of the validity of the standard override provision was presented and addressed, as it was for the most part in this appeal and the other two that were heard at the same time, essentially in terms of whether a declaration in the standard form, quite apart from the manner of its enactment, was in conformity with s. 33  of the Canadian Charter of Rights and Freedoms .

 

29.                     The essential contention in Alliance des professeurs, as in the present appeals, against the validity of the standard override provision, which was rejected by the Superior Court but upheld by the Court of Appeal, was that the provision did not sufficiently specify the guaranteed rights or freedoms which the legislation intended to override. In support of this contention reliance was placed not only on the wording of s. 33(1)  and (2)  of the Charter but on general considerations concerning the effectiveness of the democratic process. For convenience the standard override provision that is in issue, as well as s. 33(1)  and (2)  of the Charter, are quoted again:

 

                   This Act shall operate notwithstanding the provisions of sections 2  and 7  to 15  of the Constitution Act, 1982  (Schedule B of the Canada Act, chapter 11 in the 1982 volume of the Acts of the Parliament of the United Kingdom).

 

                   33. (1) Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter.

 

                   (2) An Act or a provision of an Act in respect of which a declaration made under this section is in effect shall have such operation as it would have but for the provision of this Charter referred to in the declaration.

 

30.                     It was contended that the words "a provision included in section 2 or sections 7 to 15 of this Charter" in s. 33(1) and the words "but for the provision of this Charter referred to in the declaration" in s. 33(2)  indicate that in order to be valid, a declaration pursuant to s. 33 must specify the particular provision within a section of the Charter which Parliament or the legislature of a province intends to override. That is, the specific guaranteed right or freedom to be overridden must be referred to in the words of the Charter and not merely by the number of the section or paragraph in which it appears. The rationale underlying this contention is that the nature of the guaranteed right or freedom must be sufficiently drawn to the attention of the members of the legislature and of the public so that the relative seriousness of what is proposed may be perceived and reacted to through the democratic process. As the Attorney General for Ontario, who argued against the constitutionality of the standard override provision, put it, there must be a "political cost" for overriding a guaranteed right or freedom.

 

31.                     The first issue considered in Alliance des professeurs was whether a legislature could validly in a single enactment override all the provisions of the Charter that, according to s. 33, may be overridden ‑‑ that is, s. 2 and ss. 7 to 15 inclusive. Deschênes C.J. in the Superior Court answered this question in the affirmative. He reasoned that the words "a provision" in s. 33(1) and the words "the provision" in s. 33(2)  were not intended to limit the number of the provisions that could be overridden by a s. 33 declaration, and since more than one provision could be overridden there was no reason in principle why all the provisions in s. 2 and ss. 7 to 15 could not be validly overridden by a single declaration. He further concluded that the reference to these sections by their number was a sufficient indication of the provisions intended to be overridden since it is clear the legislature intends to override all the provisions in those sections. In his view the reference to "a provision" in s. 33(1) was merely to make it clear that a legislature could validly override one only of the rights or freedoms guaranteed in a particular section or paragraph of the Charter. In reaching these conclusions Deschênes C.J. affirmed that the conditions of validity under s. 33 were conditions of form only and not of substance. There was no basis for imposing substantive limitations on the exercise of the authority conferred by s. 33, such as limiting the declaration to provisions of the Charter that could reasonably be contemplated as being put in issue by the legislation in question.

 

32.                     The Court of Appeal (Kaufman, Mayrand, Jacques and Vallerand JJ.A.) unanimously reversed this judgment, holding the standard override provision to be ultra vires or of no force or effect as not being in conformity with s. 33  of the Charter. They held that more than one provision in s. 2 or ss. 7 to 15 could be validly overridden in a single enactment, but that it was not sufficient to refer to the number of the section containing the provision to be overridden. It is a clear implication of what was said by the judges in the Court of Appeal on this question, in particular the reasons of Jacques J.A., who delivered the principal opinion, that the particular guaranteed rights or freedoms to be overridden must be sufficiently indicated by words and not merely by the numbers of the sections or paragraphs which contain them. Jacques J.A. added a further requirement of form: that the s. 33 declaration must indicate the link or relationship between the Act or legislative provision in question and the guaranteed right or freedom to be overridden. In other words, the legislature must identify the provision that is contemplated as possibly infringing a specified guaranteed right or freedom. In their reasons expressing agreement with the reasons of Jacques J.A., Mayrand and Vallerand JJ.A. did not make explicit reference to the additional requirement of a link or relationship between the overriding Act and the guaranteed right or freedom to be overridden, but they did not express disagreement with it. Like him, they emphasized the importance, from the point of view of the democratic process, of properly informing the citizens of the particular rights or freedoms intended to be overridden.

 

33.                     In the course of argument different views were expressed as to the constitutional perspective from which the meaning and application of s. 33  of the Canadian Charter of Rights and Freedoms  should be approached: the one suggesting that it reflects the continuing importance of legislative supremacy, the other suggesting the seriousness of a legislative decision to override guaranteed rights and freedoms and the importance that such a decision be taken only as a result of a fully informed democratic process. These two perspectives are not, however, particularly relevant or helpful in construing the requirements of s. 33. Section 33 lays down requirements of form only, and there is no warrant for importing into it grounds for substantive review of the legislative policy in exercising the override authority in a particular case. The requirement of an apparent link or relationship between the overriding Act and the guaranteed rights or freedoms to be overridden seems to be a substantive ground of review. It appears to require that the legislature identify the provisions of the Act in question which might otherwise infringe specified guaranteed rights or freedoms. That would seem to require a prima facie justification of the decision to exercise the override authority rather than merely a certain formal expression of it. There is, however, no warrant in the terms of s. 33 for such a requirement. A legislature may not be in a position to judge with any degree of certainty what provisions of the Canadian Charter of Rights and Freedoms  might be successfully invoked against various aspects of the Act in question. For this reason it must be permitted in a particular case to override more than one provision of the Charter and indeed all of the provisions which it is permitted to override by the terms of s. 33. The standard override provision in issue in this appeal is, therefore, a valid exercise of the authority conferred by s. 33 in so far as it purports to override all of the provisions in s. 2  and ss. 7  to 15  of the Charter. The essential requirement of form laid down by s. 33 is that the override declaration must be an express declaration that an Act or a provision of an Act shall operate notwithstanding a provision included in s. 2  or ss. 7  to 15  of the Charter. With great respect for the contrary view, this Court is of the opinion that a s. 33 declaration is sufficiently express if it refers to the number of the section, subsection or paragraph of the Charter which contains the provision or provisions to be overridden. Of course, if it is intended to override only a part of the provision or provisions contained in a section, subsection or paragraph then there would have to be a sufficient reference in words to the part to be overridden. In so far as requirements of the democratic process are relevant, this is the form of reference used in legislative drafting with respect to legislative provisions to be amended or repealed. There is no reason why more should be required under s. 33. A reference to the number of the section, subsection or paragraph containing the provisions or provisions to be overridden is a sufficient indication to those concerned of the relative seriousness of what is proposed. It cannot have been intended by the word "expressly" that a legislature should be required to encumber a s. 33 declaration by stating the provision or provisions to be overridden in the words of the Charter, which, in the case of the standard override provision in issue in the appeal, would be a very long recital indeed.

 

34.                     Therefore, s. 52 of An Act to amend the Charter of the French Language is a valid and subsisting exercise of the override authority conferred by s. 33  of the Canadian Charter of Rights and Freedoms  that protects s. 58 of the Charter of the French Language from the application of s. 2( b )  of the Canadian  Charter . Section 69 of the Charter of the French Language is not so protected since it was not affected by An Act to amend the Charter of the French Language. In the result, as indicated in the following Part VI of these reasons, s. 58 is subject to s. 3 of the Quebec Charter of Human Rights and Freedoms while s. 69 is subject to both s. 2( b )  of the Canadian  Charter  and s. 3 of the Quebec Charter.

 

35.                     Before leaving Part V of these reasons, it remains to be considered whether the Court should exercise its discretion to rule on the other aspects of the validity of the standard override provision as enacted by An Act respecting the Constitution Act, 1982: the "omnibus" character of the enactment; and the retrospective effect given to the override provision. These issues affect both s. 214 of the Charter of the French Language, which is in issue in this appeal and in the Devine appeal and s. 364 of the Consumer Protection Act, R.S.Q., c. P‑40.1, in the Irwin Toy appeal. The Court has concluded that although both of these provisions have ceased to have effect it is better that all questions concerning their validity should be settled in these appeals because of their possible continuing importance in other cases. Given the conclusion that the enactment of the standard override provision in the form indicated above is a valid exercise of the authority conferred by s. 33  of the Canadian Charter of Rights and Freedoms , this Court is of the opinion that the validity of its enactment is not affected by the fact that it was introduced into all Quebec statutes enacted prior to a certain date by a single enactment. That was an effective exercise of legislative authority that did not prevent the override declaration so enacted in each statute from being an express declaration within the meaning of s. 33  of the Canadian  Charter . Counsel referred to this form of enactment as reflecting an impermissibly "routine" exercise of the override authority or even a "per­version" of it. It was even suggested that it amounted to an attempted amendment of the Charter. These are once again essentially submissions concerning permissible legislative policy in the exercise of the override authority rather than what constitutes a sufficiently express declaration of override. As has been stated, there is no warrant in s. 33 for such considerations as a basis of judicial review of a particular exercise of the authority conferred by s. 33. The Court is of a different view, however, concerning the retrospective effect given to the standard override provision by s. 7 of An Act respecting the Constitution Act, 1982, which for convenience is quoted again as follows:

 

                   7. This Act comes into force on the day of its sanction.

 

                   However, section 1 and the first paragraph of section 3 have effect from 17 April 1982; section 2 and the second paragraph of section 3 have effect from the date from which each of the Acts replaced under section 2 came into force.

 

In providing that s. 1, which re‑enacted all of the Quebec statutes adopted before April 17, 1982 with the addition in each of the standard override provision, should have effect from that date, s. 7 purported to give retrospective effect to the override provision. In this regard, the wording of s. 33(1)  of the Canadian  Charter  is not without ambiguity. For purposes of clarity, we set out the relevant provision in both languages:

 

                   33. (1) Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter.

 

                   33. (1) Le Parlement ou la législature d'une province peut adopter une loi où il est expressément déclaré que celle‑ci ou une de ses dispositions a effet indépendamment d'une disposition donnée de l'article 2 ou des articles 7 à 15 de la présente charte.

 

In English, the critical phrase is "shall operate notwithstanding". Generally, the word "shall" may have either a prospective or an imperative meaning or both. Similarly, the French "a effet indépendamment" is susceptible of a valid interpretation in more than one tense.

 

36.                     Pierre‑André Côté in his treatise, The Interpretation of Legislation in Canada (1984), has a detailed discussion of the rule against retroactive operation. He notes at p. 96:

 

                   The rule against retroactive operation has been affirmed frequently by the courts, though the judicial expressions of the principle often leave something to be desired.

 

                   Wright J.'s dictum in Re Athlumney frequently cited:

 

"Perhaps no rule of construction is more firmly established than this ‑‑ that a retrospective operation is not to be given to a statute so as to impair an existing right or obligation, otherwise than as regards matter of procedure, unless that effect cannot be avoided without doing violence to the language of the enactment. If the enactment is expressed in language which is fairly capable of either interpretation, it ought to be construed as prospective only." [[1898] 2 Q.B. 547, at pp. 551‑52]

 

In Gustavson Drilling (1964) Ltd. v. Minister of National Revenue, [1977] 1 S.C.R. 271, Dickson J. (as he then was) wrote, for the majority (at p.  279):

 

The general rule is that statutes are not to be construed as having retrospective operation unless such a construction is expressly or by necessary implication required by the language of the Act.

 

Where, as here, an enabling provision is ambiguous as to whether it allows for retroactive legislation, the same rule of construction applies. In this case, s. 33(1) admits of two interpretations; one that allows Parliament or a legislature to enact retroactive override provisions, the other that permits prospective derogation only. We conclude that the latter and narrower interpretation is the proper one, and that s. 7 cannot give retrospective effect to the override provision. Section 7 of An Act respecting the Constitution Act, 1982, is to the extent of this inconsistency with s. 33  of the Canadian  Charter , of no force or effect, with the result that the standard override provisions enacted by s. 1 of that Act came into force on June 23, 1982 in accordance with the first paragraph of s. 7.

 

                                                                   VI

 

The Dates from Which s. 3 of the Quebec Charter of Human Rights and Freedoms Took Precedence, in Case of Conflict, over ss. 58 and 69 of the Charter of the French Language

 

37.                     Section 3 of the Quebec Charter of Human Rights and Freedoms is applicable to ss. 58 and 69 of the Charter of the French Language in this appeal because by operation of s. 52 of the Quebec Charter, as amended, s. 3 took precedence over ss. 58 and 69 not later than January 1, 1986. As indicated above, however, there was a difference of opinion in the Superior Court and the Court of Appeal as to the date from which s. 3 took precedence over s. 58, the Superior Court holding that it was from February 1, 1984, the Court of Appeal holding that it was from January 1, 1986. Although the resolution of this question is not strictly necessary for the disposition of the appeal we were invited by counsel to express an opinion on it because of its possible importance in other cases. We propose to do so for reasons similar to those concerning the question of the validity of the standard override provision as enacted by An Act respecting the Constitution Act, 1982.

 

38.                     By operation of s. 52 of the Quebec Charter, as amended by s. 16 of An Act to amend the Charter of Human Rights and Freedoms, S.Q. 1982, c. 61, and of s. 34 of the amending Act, respecting the coming into force of s. 16 by proclamation, all of which are quoted in Part II of these reasons, s. 3 of the Quebec Charter took precedence from October 1, 1983, the date the amending Act came into force by proclamation, over "Acts subsequent to that date" and from January 1, 1986 over "Acts preceding" October 1, 1983. The difference of opinion in the Superior Court and the Court of Appeal was as to whether s. 58 of the Charter of the French Language, as replaced by s. 12 of An Act to amend the Charter of the French Language, S.Q. 1983, c. 56, which was assented to on December 22, 1983 and proclaimed in force on February 1, 1984, was an Act "subsequent to" October 1, 1983 within the meaning of s. 34 of the amending Act or an Act preceding that date. In its original form s. 58 of the Charter of the French Language was enacted in 1977 by S.Q. 1977, c. 5 and came into force by operation of s. 209 of the Charter on July 3, 1978. It read as follows: "58. Except as may be provided under this act or the regulations of the Office de la langue française, signs and posters and commercial advertising shall be solely in the official language." As replaced by s. 12 of An Act to amend the Charter of the French Language, s. 58 now provides:

 

                   58. Public signs and posters and commercial advertising shall be solely in the official language.

 

                   Notwithstanding the foregoing, in the cases and under the conditions or circumstances prescribed by regulation of the Office de la langue française, public signs and posters and commercial advertising may be both in French and in another language or solely in another language.

 

The difference of opinion on this issue turned on whether the word "subsequent" in s. 34 of the amending Act meant subsequent in time or subsequent in the sense of being "new law" as opposed to a mere consolidation. Boudreault J., who held that s. 3 of the Quebec Charter of Human Rights and Freedoms took precedence over s. 58 of the Charter of the French Language, as amended, from February 1, 1984 (and this was a necessary conclusion in order for him to be able to apply s. 3 at the time of his judgment), was of the view that "subsequent" meant subsequent in time, that it referred to the chronological order of legislation and not to the nature of its substantive effect on existing law. Bisson J.A. in the Court of Appeal was of the view that s. 58 as replaced by s. 12 of the amending Act was not an enactment subsequent to October 1, 1983 within the meaning of s. 34 of the amending Act because it was not new law but in the nature of a consolidation. He applied the rule of statutory construction embodied in s. 36(f) of the federal Interpretation Act, R.S.C. 1970, c. I‑23, and stated as a general rule of construction by Professor Côté in his treatise, The Interpretation of Legislation in Canada, op. cit., to the effect that if a statutory provision is replaced by one that is identical in substance the provision which replaces it is equivalent to a consolidation with the result that it is deemed not to be new law and must be interpreted as a declaration of the former law, which is considered, for purposes of construction, to have remained in force. The theory underlying the corresponding s. 13 of the Quebec Interpretation Act, R.S.Q., c. I‑16, would appear to be somewhat different: everything done under the replaced provision is deemed to have been done and to continue under the "new" provision. This raises a question as to whether the rule of construction stated by Professor Côté, based as it is in part on the federal provision, applies to the construction of Quebec statutes. It is not necessary, however, to express an opinion on this question because as Boudreault J. held in the Superior Court, the word "subsequent" in s. 34 of An Act to amend the Charter of the French Language refers to an enactment that is subsequent in time to October 1, 1983, regardless of its effect on existing legislation, with the result that s. 3 of the Quebec Charter of Human Rights and Freedoms was applicable to s. 58 of the Charter of the French Language, as amended, from February 1, 1984.

 

                                                                   VII

 

Whether the Freedom of Expression Guaranteed by s. 2( b )  of the Canadian Charter of Rights and Freedoms  and by s. 3 of the Quebec Charter of Human Rights and Freedoms Includes the Freedom to Express Oneself in the Language of One's Choice

 

39.                     In so far as this issue is concerned, the words "freedom of expression" in s. 2( b )  of the Canadian  Charter  and s. 3 of the Quebec Charter should be given the same meaning. As indicated above, both the Superior Court and the Court of Appeal held that freedom of expression includes the freedom to express oneself in the language of one's choice. After indicating the essential relationship between expression and language by reference to dictionary definitions of both, Boudreault J. in the Superior Court said that in the ordinary or general form of expression there cannot be expression without language. Bisson J.A. in the Court of Appeal said that he agreed with the reasons of Boudreault J. on this issue and expressed his own view in the form of the following question: "Is there a purer form of freedom of expression than the spoken language and written language?" He supported his conclusion by quotation of the following statement of this Court in Reference re Manitoba Language Rights, [1985] 1 S.C.R. 721, at p. 744: "The importance of language rights is grounded in the essential role that language plays in human existence, development and dignity. It is through language that we are able to form concepts; to structure and order the world around us. Language bridges the gap between isolation and community, allowing humans to delineate the rights and duties they hold in respect of one another, and thus to live in society."

 

40.                     The conclusion of the Superior Court and the Court of Appeal on this issue is correct. 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 colours the content and meaning of expression. It is, as the preamble of the Charter of the French Language itself indicates, a means by which a people may express its cultural identity. It is also the means by which the individual expresses his or her personal identity and sense of individuality. That the concept of "expression" in s. 2( b )  of the Canadian  Charter  and s. 3 of the Quebec Charter goes beyond mere content is indicated by the specific protection accorded to "freedom of thought, belief [and] opinion" in s. 2 and to "freedom of conscience" and "freedom of opinion" in s. 3. That suggests that "freedom of expression" is intended to extend to more than the content of expression in its narrow sense.

 

41.                     The Attorney General of Quebec made several submissions against the conclusion reached by the Superior Court and the Court of Appeal on this issue, the most important of which may be summarized as follows: (a) in determining the meaning of freedom of expression the Court should apply the distinction between the message and the medium which must have been known to the framers of the Canadian and Quebec Charters; (b) the express provision for the guarantee of language rights in ss. 16  to 23  of the Canadian  Charter  indicate that it was not intended that a language freedom should result incidentally from the guarantee of freedom of expression in s. 2(b); (c) the recognition of a freedom to express oneself in the language of one's choice under s. 2( b )  of the Canadian  Charter  and s. 3 of the Quebec Charter would undermine the special and limited constitutional position of the specific guarantees of language rights in s. 133  of the Constitution Act, 1867  and ss. 16  to 23  of the Canadian  Charter  that was emphasized by the Court in MacDonald v. City of Montreal, [1986] 1 S.C.R. 460, and Société des Acadiens du Nouveau‑Brunswick Inc. v. Association of Parents for Fairness in Education, [1986] 1 S.C.R. 549; and (d) the recognition that freedom of expression includes the freedom to express oneself in the language of one's choice would be contrary to the views expressed on this issue by the European Commission of Human Rights and the European Court of Human Rights.

 

42.                     The distinction between the message and the medium was applied by Dugas J. of the Superior Court in Devine v. Procureur général du Québec, supra, in holding that freedom of expression does not include freedom to express oneself in the language of one's choice. It has already been indicated why that distinction is inappropriate as applied to language as a means of expression because of the intimate relationship between language and meaning. As one of the authorities on language quoted by the appellant Singer in the Devine appeal, J. Fishman, The Sociology of Language (1972), at p. 4, puts it: ". . . language is not merely a means of interpersonal communication and influence. It is not merely a carrier of content, whether latent or manifest. Language itself is content, a reference for loyalties and animosities, an indicator of social statuses and personal relationships, a marker of situations and topics as well as of the societal goals and the large‑scale value‑laden arenas of interaction that typify every speech community." As has been noted this quality or characteristic of language is acknowledged by the Char­ter of the French Language itself where, in the first paragraph of its preamble, it states: "Whereas the French language, the distinctive language of a people that is in the majority French‑speaking, is the instrument by which that people has articulated its identity."

 

43.                     The second and third of the submissions of the Attorney General of Quebec which have been summarized above, with reference to the implications for this issue of the express or specific guarantees of language rights in s. 133  of the Constitution Act, 1867 , and ss. 16  to 23  of the Canadian Charter of Rights and Freedoms , are closely related and may be addressed together. These special guarantees of language rights do not, by implication, preclude a construction of freedom of expression that includes the freedom to express oneself in the language of one's choice. A general freedom to express oneself in the language of one's choice and the special guarantees of language rights in certain areas of governmental activity or jurisdiction ‑‑ the legislature and administration, the courts and education ‑‑ are quite different things. The latter have, as this Court has indicated in MacDonald, supra, and Société des Acadiens, supra, their own special historical, political and constitutional basis. The central unifying feature of all of the language rights given explicit recognition in the Constitution of Canada is that they pertain to governmental institutions and for the most part they oblige the government to provide for, or at least tolerate, the use of both official languages. In this sense they are more akin to rights, properly understood, than freedoms. They grant entitlement to a specific benefit from the government or in relation to one's dealing with the government. Correspondingly, the government is obliged to provide certain services or benefits in both languages or at least permit use of either language by persons conducting certain affairs with the government. They do not ensure, as does a guaranteed freedom, that within a given broad range of private conduct, an individual will be free to choose his or her own course of activity. The language rights in the Constitution impose obligations on government and governmental institutions that are in the words of Beetz J. in MacDonald, a "precise scheme", providing specific opportunities to use English or French, or to receive services in English or French, in concrete, readily ascertainable and limited circumstances. In contrast, what the respondents seek in this case is a freedom as that term was explained by Dickson J. (as he then was) in R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295, at p. 336: "Freedom can primarily be characterized by the absence of coercion or constraint. If a person is compelled by the state or the will of another to a course of action or inaction which he would not otherwise have chosen, he is not acting of his own volition and he cannot be said to be truly free. One of the major purposes of the Charter is to protect, within reason, from compulsion or restraint." The respondents seek to be free of the state imposed requirement that their commercial signs and advertising be in French only, and seek the freedom, in the entirely private or non‑governmental realm of commercial activity, to display signs and advertising in the language of their choice as well as that of French. Manifestly the respondents are not seeking to use the language of their choice in any form of direct relations with any branch of government and are not seeking to oblige government to provide them any services or other benefits in the language of their choice. In this sense the respondents are asserting a freedom, the freedom to express oneself in the language of one's choice in an area of non‑governmental activity, as opposed to a language right of the kind guaranteed in the Constitution. 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 special guarantees of official language rights in areas of governmental jurisdiction or responsibility. The legal structure, function and obligations of government institutions with respect to the English and French languages are in no way affected by the recognition that freedom of expression includes the freedom to express oneself in the language of one's choice in areas outside of those for which the special guarantees of language have been provided.

 

44.                     The decisions of the European Commission of Human Rights and the European Court of Human Rights on which the Attorney General of Quebec relied are all distinguishable on the same basis, apart from the fact that, as Bisson J.A. observed in the Court of Appeal, they arose in an entirely different constitutional context. They all involved claims to language rights in relations with government that would have imposed some obligation on government. The decisions of the Commission in their chronological order are as follows: 23 Inhabitants of Alsemberg and Beersel v. Belgium (1963), 6 Yearbook of the European Convention on Human Rights 332; Inhabitants of Leeuw‑St. Pierre v. Belgium (1965), 8 Yearbook of the European Convention on Human Rights 338; X. v. Belgium (1965), 8 Yearbook of the European Convention on Human Rights 282; and X. v. Ireland (1970), 13 Yearbook of the European Convention on Human Rights 792. The decision of the Court is the Case "Relating to certain aspects of the laws on the use of languages in education in Belgium" (1968), 11 Yearbook of the European Convention on Human Rights 832, which arose out of the decision of the Commission in Alsemberg and related applications. In Alsemberg and the case decided by the Court arising out of it, the claim was to the right to public education in a particular language. In Inhabitants of Leeuw‑St. Pierre, X. v. Belgium and X. v. Ireland, the language right claimed was the right to receive certain administrative documents in a particular language. In the four cases decided by the Commission the applicants invoked Articles 9 and 10 of the European Convention on Human Rights in support of their claims. In the case decided by the Court, Articles 9 and 10 were not in issue because the applications had been ruled by the Commission as inadmissible in respect of those provisions. Article 9 provides for "the right to freedom of thought, conscience and religion" and Article 10 provides for "the right to freedom of expression". Reference was also made in the decisions to Articles 5(2), 6(3)(a) and (e) of the Convention. Article 5(2) provides that everyone who is arrested shall be informed promptly "in a language which he understands" of the reasons for his arrest and of any charge against him. Article 6(3)(a) provides that everyone charged with a criminal offence has the right to be informed promptly "in a language which he understands" and in detail of the nature and cause of the accusation against him. Article 6(3)(e) provides that everyone charged with a criminal offence has the right "to have the free assistance of an interpreter if he cannot understand or speak the language used in court". What the Commission decided in effect in these cases, and what the Court impliedly agreed with is that language rights of the kind claimed, involving an obligation on the part of government, could not be based on the freedom of thought and freedom of expression provided for in Articles 9 and 10 but had to be specially provided for, as are the language rights of this character in Articles 5(2), 6(3)(a) and (e). This distinction is clearly put in Inhabitants of Leeuw‑St. Pierre, where the Commission applied the reasoning in the following quotation from one of its earlier decisions involving a claim to have "administrative formalities" completed in a particular language (at p. 348):

 

                   These considerations are obviously applicable without restriction to the applicants' grievances regarding the use of languages in administration. It is clear that one has to distort the usual meaning of the passages [Articles 9 and 10 of the Convention] if one is to transform the right to express one's thought freely in the language of one's choice into a right to complete, and insist on the completion of, all administrative formalities in that language.

 

                   The applicants' argument would only be acceptable in so far as it could be based on texts similar to Articles 5(2) and 6(3)(a) and (e) of the Convention. To admit that it might have some foundation in Articles 9 and 10 would be tantamount to attributing to those two Articles such a wide scope that the specific guarantees given in Articles 5 and 6 would have to be considered superfluous.

 

This reasoning, assuming it to have some persuasive authority, is entirely consistent with the distinction drawn and the conclusion reached above that the freedom of expression guaranteed by s. 2( b )  of the Canadian  Charter  and s. 3 of the Quebec Charter includes the freedom to express oneself in the language of one's choice.

 

                                                                  VIII

 

Whether the Guarantee of Freedom of Expression Extends to Commercial Expression

 

45.                     In argument there arose a question whether the above issue is an issue in this appeal. The Attorney General of Quebec contended that if the guarantee of freedom of expression included the freedom to express oneself in the language of one's choice the respondents must still show that the guarantee extends to commercial expression. The respondents disputed this on the ground that the challenged provisions are directed to the language used and not to regulation of the substantive content of the expression. At the same time they made alternative submissions that the guarantee extended to commercial expression. The Attorney General of Quebec is correct on this issue: there cannot be a guaranteed freedom to express oneself in the language of one's choice in respect of a form or kind of expression that is not covered by the guarantee of freedom of expression. The question whether the guarantee of freedom of expression in s. 2( b )  of the Canadian  Charter  and s. 3 of the Quebec Charter extends to the kind of expression contemplated by ss. 58 and 69 of the Charter of the French Language, which for convenience is referred to as commercial expression, is therefore an issue in this appeal. The submissions that were made on the question of commercial expression in the Devine and Irwin Toy appeals will be considered in determining that issue in this appeal.

 

46.                     It was not disputed that the public signs and posters, the commercial advertising, and the firm name referred to in ss. 58 and 69 of the Charter of the French Language are forms of expression, and it was also assumed or accepted in argument that the expression contemplated by these provisions may be conveniently characterized or referred to as commercial expression. Sections 58 and 69 appear in Chapter VII of the Charter of the French Language, entitled "The Language of Commerce and Business". It must be kept in mind, however, that while the words "commercial expression" are a convenient reference to the kind of expression contemplated by the provisions in issue, they do not have any particular meaning or significance in Canadian constitutional law, unlike the corresponding expression "commercial speech", which in the United States has been recognized as a particular category of speech entitled to First Amendment protection of a more limited character than that enjoyed by other kinds of speech. The issue in the appeal is not whether the guarantee of freedom of expression in s. 2( b )  of the Canadian  Charter  and s. 3 of the Quebec Charter should be construed as extending to particular categories of expression, giving rise to difficult definitional problems, but whether there is any reason why the guarantee should not extend to a particular kind of expression, in this case the expression contemplated by ss. 58 and 69 of the Charter of the French Language. Because, however, the American experience with the First Amendment protection of "commercial speech" was invoked in argument, as it has been in other cases, both for and against the recognition in Canada that the guarantee of freedom of expression extends to the kinds of expression that may be described as commercial expression, it is convenient to make brief reference to it at this point.

 

47.                     In Valentine v. Chrestensen, 316 U.S. 52 (1942), the Supreme Court of the United States declined to afford First Amendment protection to speech which did no more than propose a commercial transaction. Some thirty‑four years later, in Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council Inc., 425 U.S. 748 (1976), the Supreme Court affirmed a repudiation of the notion that commercial speech constituted an unprotected exception to the First Amendment guarantee. Virginia Pharmacy concerned a Virginia statute which prohibited pharmacists from advertising prices for prescription drugs. The statute was challenged by customers who asserted a First Amendment right to receive drug price information that the pharmacist wished to communicate. The speech at issue was purely commercial in that it simply proposed a commercial transaction. By holding that price advertising was not outside the First Amendment, the Court rejected the central premise of the commercial speech doctrine ‑‑ that is, that business advertising which merely solicits a commercial transaction is susceptible to government regulation on the same terms as any other aspect of the market place. The reasons of Blackmun J., writing for the Court, focus on the informative function of the speech from the point of view of the listener whose interest, it was said, "may be as keen, if not keener by far, than his interest in the day's most urgent political debate" (p. 763). The rationale stated by the Court for a First Amendment protection of commercial speech was the interest of the individual consumer and the society generally in the free flow of commercial information as indispensable to informed economic choice. The reasons are careful to note, however, that although commercial speech is protected it is entitled to a lesser degree of protection than that afforded to other forms of speech. The Court rejected the argument that the public could be kept in ignorance to prevent lawful conduct that the government deems harmful, stating that "people will perceive their own best interests if only they are well enough informed, and that the best means to that end is to open the channels of communication rather than to close them" (p. 770). The implication of the decision in Virginia Pharmacy was that the State may not completely suppress truthful and non‑misleading advertising of lawful products on the ground that the information to be conveyed would have a harmful effect.

 

48.                     By 1980, when the Court decided Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, 447 U.S. 557 (1980), it was apparent that some control of truthful advertising was legitimate as long as the regulation directly advanced a substantial state interest. Powell J., writing for the Court, formulated a four‑part analysis for determining whether a particular regulation of commercial speech is consistent with the First Amendment, which he summed up as follows at p. 566:

 

                   In commercial speech cases, then, a four‑part analysis has developed. At the outset, we must determine whether the expression is protected by the First Amendment. For commercial speech to come within that provision, it at least must concern lawful activity and not be misleading. Next, we ask whether the asserted governmental interest is substantial. If both inquiries yield positive answers, we must determine whether the regulation directly advances the governmental interest asserted, and whether it is not more extensive than is necessary to serve that interest.

 

He had earlier elaborated the test, as applied to the means chosen to serve the particular governmental interest, as follows at p. 564:

 

                   The State must assert a substantial interest to be achieved by restrictions on commercial speech. Moreover, the regulatory technique must be in proportion to that interest. The limitation on expression must be designed carefully to achieve the State's goal. Compliance with this requirement may be measured by two criteria. First, the restriction must directly advance the state interest involved; the regulation may not be sustained if it provides only ineffective or remote support for the government's purpose. Second, if the governmental interest could be served as well by a more limited restriction on commercial speech, the excessive restrictions cannot survive.

 

It has been observed that this test is very similar to the test that was adopted by this Court in R. v. Oakes, [1986] 1 S.C.R. 103, for justification under s. 1  of the Charter. The Central Hudson test has been described as "an uneasy compromise" between competing strains of commercial speech theory. It is an attempt to balance the legitimacy of government regulations intended to protect consumers from harmful commercial speech with the belief that a free market in ideas and information is necessary to an informed and autonomous consumer.

 

49.                     In Posadas de Puerto Rico Associates v. Tourism Co. of Puerto Rico, 106 S.Ct. 2968 (1986), the Court applied the Central Hudson test in a manner that attracted much criticism as reflecting, in the opinion of some commentators, an excessively deferential attitude to government regulation in the face of little or no demonstration by the state that the legislative means it had adopted either directly advanced the asserted substantial interest or minimally restricted first amendment interests. See, for example, Philip B. Kurland, "Posadas de Puerto Rico v. Tourism Company: " 'Twas Strange, 'Twas Passing Strange; 'Twas Pitiful, 'Twas Wondrous Pitiful'," [1986] Sup. Ct. Rev. 1; and "The Supreme Court‑‑Leading Cases" (1986), 100 Harv. L. Rev. 100, at p. 172. Posadas reflects how differences of view or emphasis in the application of the Central Hudson test can determine the effective extent of the protection of commercial speech from legislative limitation or restriction. It reveals the tension between two values: the value of the free circulation of commercial information and the value of consumer protection against harmful commercial speech. The American experience with the constitutional protection of commercial speech further indicates the difficulties inherent in its application, in particular the degree to which the courts are involved in the evaluation of regulatory policy in the field of consumer protection. The American jurisprudence with respect to commercial speech has been the subject of much scholarly analysis and criticism. Among the leading articles are the following: Jackson and Jeffries, "Commercial Speech: Economic Due Process and the First Amendment" (1979), 65 Va. L. Rev. 1; Weinberg, "Constitutional Protection of Commercial Speech" (1982), 82 Colum. L. Rev. 720; and Lively, "The Supreme Court and Commercial Speech: New Words with an Old Message" (1987), 72 Minn. L. Rev. 289. There is also an analysis of the American jurisprudence in the very helpful article on commercial expression by Professor Robert J. Sharpe, "Commercial Expression and the Charter" (1987), 37 U. of T.L.J. 229.

 

50.                     In the case at bar Boudreault J. in the Superior Court held that the guarantee of freedom of expression in s. 3 of the Quebec Charter extended to commercial expression. He relied particularly on the reasoning in the American decisions, quoting at length from the judgment of Blackmun J. in Virginia Pharmacy for the rationale underlying the protection of commercial speech in the United States. He emphasized, as does that case, that it is not only the speaker but the listener who has an interest in freedom of expression. In the Court of Appeal, Bisson J.A. applied the judgment of the majority of the Court on this issue in Irwin Toy Ltd. v. Procureur général du Québec, [1986] R.J.Q. 2441, and quoted from the opinions of Jacques J.A. and Vallerand J.A. in that case. In Irwin Toy, Jacques J.A. held that there was no basis on the face of s. 2( b )  of the Canadian  Charter  for distinguishing, in respect of the guarantee of freedom of expression, between different kinds of expression, whether they be of a political, artistic, cultural or other nature. He held that commercial expression was as much entitled to protection as other kinds of expression because of the important role played by it in assisting persons to make informed economic choices. He added, however, that commercial expression might be subject to reasonable limits under s. 1  of the Canadian  Charter  of a kind that would not be reasonable in the case of political expression. While Jacques J.A. did not refer explicitly to the American jurisprudence on commercial speech, his general approach to the question of commercial expression would appear to contemplate a result similar to that reached in the American cases: the constitutional protection of freedom of commercial expression but to a lesser degree than that accorded to political expression. Vallerand J.A. expressed a similar view, indicating his agreement with the rationale for the protection of commercial expression reflected in the American cases: the individual and societal interest in the free flow of commercial information as indispensable to informed economic decisions.

 

51.                     In the course of argument reference was made to two other Canadian decisions which reflect the contrasting positions on the question whether freedom of expression should extend to commercial expression: the majority decision of the Ontario Divisional Court in Re Klein and Law Society of Upper Canada (1985), 16 D.L.R. (4th) 489, and the unanimous decision of the Alberta Court of Appeal in Re Grier and Alberta Optometric Association (1987), 42 D.L.R. (4th) 327. In Klein, on which the Attorney General of Quebec and those who supported his contention that freedom of expression should not extend to commercial expression placed particular reliance, the relevant issue was whether the Rules of Professional Conduct of the Law Society of Upper Canada prohibiting fee advertising by solicitors infringed the guarantee of freedom of expression in s. 2 (b) of the Charter. After referring to the pre‑Charter decisions on freedom of speech and the American jurisprudence on commercial speech, Callaghan J., with whom Eberle J. concurred, concluded that the guarantee of freedom of expression in s. 2(b) should not extend to commercial expression. He held that commercial expression was unrelated to political expression, which in his view was the principal if not exclusive object of the protection afforded by s. 2(b). He said at p. 532: "The Charter reflects a concern with the political rights of the individual and does not, in my view, reflect a similar concern with the economic sphere nor with its incidents such as commercial speech" and "Prima facie then, the freedom of expression guaranteed by s. 2 (b) of the Charter would appear to apply to the expression of ideas relating to the political and governmental domains of the country. (I leave aside the question of whether or not artistic expression falls within s. 2(b))." After a very full discussion of American jurisprudence and experience with respect to the First Amendment protection of commercial speech Callaghan J. expressed the view that there were good reasons for not following it, among them the extent to which such protection involved the courts in a difficult case‑by‑case review of regulatory policy. He concluded as follows at p. 539: "I would conclude that there is no reason to expand the meaning of the word "expression" in s. 2 (b) of the Charter to cover pure commercial speech. Commercial speech contributes nothing to democratic government because it says nothing about how people are governed or how they should govern themselves. It does not relate to government policies or matters of public concern essential to a democratic process. It pertains to the economic realm and is a matter appropriate to regulation by the Legislature." Henry J., dissenting, adopted the rationale reflected in the American decisions for the protection of commercial expression, emphasizing the indispensable role played by commercial advertising in the functioning of the market economy, the performance of which is of vital concern to the body politic.

 

52.                     In Grier, the Alberta Court of Appeal (Lieberman, Kerans and Irving JJ.A.) held that a brochure mailed by a licensed optometrist to patients and others quoting prices for various services was protected expression within the meaning of s. 2 (b) of the Charter. It declined to follow Klein on the question of commercial expression and expressed agreement with the decision of the Quebec Court of Appeal in Irwin Toy on that question. In the course of a discussion of the protected value that justifies a guarantee of freedom of commercial expression under s. 2(b) Kerans J.A. quoted with approval from the statement in that case by Jacques J.A. of the rationale for the protection of commercial expression. He added at p. 336: "The valued activity engaged here, then, is the dissemination of service and product information for consumer protection."

 

53.                     The submissions of the Attorney General of Quebec and those who supported him on this issue may be summarized as follows. The scope of a guaranteed freedom must be determined, as required by R. v. Big M Drug Mart Ltd., supra, in the light of the character and larger objects of the Canadian  Charter  and the linguistic, philosophic and historical context of the particular freedom. There is no historical basis for a guarantee of freedom of commercial expression in pre‑Charter jurisprudence, in which recognition was given, on the basis of the division of powers and the "implied bill of rights", to freedom of political expression. Freedom of expression appears in both the Canadian  Charter  and the Quebec Charter under the heading of "Fundamental Freedoms"; there is nothing fundamental about commercial expression. A guarantee of freedom of expression which embraces commercial advertising would be the protection of an economic right, when both the Canadian  Charter  and the Quebec Charter clearly indicate that they are not concerned with the protection of such rights. The American decisions recognizing a limited First Amendment protection for commercial speech must be seen in the context of a constitution that protects the right of property, whereas that right was deliberately omitted from the protection afforded by s. 7  of the Canadian  Charter . This Court, in refusing to constitutionalize the right to strike, has recognized that the Canadian  Charter  does not extend to economic rights or freedoms. To extend freedom of expression beyond political expression, and possibly artistic and cultural expression, would trivialize that freedom and lead inevitably to the adoption of different justificatory standards under s. 1 according to the kind of expression involved. The terms of s. 1, as interpreted and applied by the courts, do not permit of such differential application. Freedom of commercial expression, and in particular commercial advertising, does not serve any of the values that would justify its constitutional protection. Commercial advertising is manipulative and seeks to condition or control economic choice rather than to provide the basis of a truly informed choice. As the American experience shows, the recognition of a limited protection for commercial expression involves an evaluation of regulatory policy that is better left to the legislature. Academic criticism of the American approach to commercial speech and judicial expression of misgivings concerning it provide sufficient reason for declining to follow it.

 

54.                     It is apparent to this Court that the guarantee of freedom of expression in s. 2( b )  of the Canadian  Charter  and s. 3 of the Quebec Charter cannot be confined to political expression, important as that form of expression is in a free and democratic society. The pre‑Charter jurisprudence emphasized the importance of political expression because it was a challenge to that form of expression that most often arose under the division of powers and the "implied bill of rights", where freedom of political expression could be related to the maintenance and operation of the institutions of democratic government. But political expression is only one form of the great range of expression that is deserving of constitutional protection because it serves individual and societal values in a free and democratic society.

 

55.                     The post‑Charter jurisprudence of this Court has indicated that the guarantee of freedom of expression in s. 2 (b) of the Charter is not to be confined to political expression. In holding, in RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573, that secondary picketing was a form of expression within the meaning of s. 2(b) the Court recognized that the constitutional guarantee of freedom of expression extended to expression that could not be characterized as political expression in the traditional sense but, if anything, was in the nature of expression having an economic purpose. Although the authority canvassed by McIntyre J. on the importance of freedom of expression tended to emphasize political expression, his own statement of the importance of this freedom clearly included expression that could be characterized as having other than political significance, where he said of freedom of expression at p. 583: "It is one of the fundamental concepts that has formed the basis for the historical development of the political, social and educational institutions of western society."

 

56.                     Various attempts have been made to identify and formulate the values which justify the constitutional protection of freedom of expression. Probably the best known is that of Professor Thomas I. Emerson in his article, "Toward a General Theory of the First Amendment" (1963), 72 Yale L.J. 877, where he sums up these values as follows at p. 878:

 

                   The values sought by society in protecting the right to freedom of expression may be grouped into four broad categories. Maintenance of a system of free expression is necessary (1) as assuring individual self‑fulfillment, (2) as a means of attaining the truth, (3) as a method of securing participation by the members of the society in social, including political, decision‑making, and (4) as maintaining the balance between stability and change in society.

 

The third and fourth of these values would appear to be closely related if not overlapping. Generally the values said to justify the constitutional protection of freedom of expression are stated as three‑fold in nature, as appears from the article by Professor Sharpe referred to above on "Commercial Expression and the Charter", where he speaks of the three "rationales" for such protection as follows at p. 232:

 

                   The first is that freedom of expression is essential to intelligent and democratic self‑government.... The second theory is that freedom of expression protects an open exchange of views, thereby creating a competitive market‑place of ideas which will enhance the search for the truth....

 

                   The third theory values expression for its own sake. On this view, expression is seen as an aspect of individual autonomy. Expression is to be protected because it is essential to personal growth and self‑realization.

 

57.                     While these attempts to identify and define the values which justify the constitutional protection of freedom of expression are helpful in emphasizing the most important of them, they tend to be formulated in a philosophical context which fuses the separate questions of whether a particular form or act of expression is within the ambit of the interests protected by the value of freedom of expression and the question whether that form or act of expression, in the final analysis, deserves protection from interference under the structure of the Canadian  Charter  and the Quebec Charter. These are two distinct questions and call for two distinct analytical processes. The first, at least for the Canadian  Charter , is to be determined by the purposive approach to interpretation set out by this Court in Hunter v. Southam Inc., [1984] 2 S.C.R. 145, and Big M Drug Mart Ltd., supra. The second, the question of the limitation on the protected values, is to be determined under s. 1  of the Charter as interpreted in Oakes, supra, and R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713. The division between the two analytical processes has been established by this Court in the above decisions. First, consideration will be given to the interests and purposes that are meant to be protected by the particular right or freedom in order to determine whether the right or freedom has been infringed in the context presented to the court. If the particular right or freedom is found to have been infringed, the second step is to determine whether the infringement can be justified by the state within the constraints of s. 1. It is within the perimeters of s. 1 that courts will in most instances weigh competing values in order to determine which should prevail.

 

58.                     In order to address the issues presented by this case it is not necessary for the Court to delineate the boundaries of the broad range of expression deserving of protection under s. 2( b )  of the Canadian  Charter  or s. 3 of the Quebec Charter. It is necessary only to decide if the respondents have a constitutionally protected right to use the English language in the signs they display, or more precisely, whether the fact that such signs have a commercial purpose removes the expression contained therein from the scope of protected freedom.

 

59.                     In our view, the commercial element does not have this effect. Given the earlier pronouncements of this Court to the effect that the rights and freedoms guaranteed in the Canadian  Charter  should be given a large and liberal interpretation, there is no sound basis on which commercial expression can be excluded from the protection of s. 2 (b) of the Charter. It is worth noting that the courts below applied a similar generous and broad interpretation to include commercial expression within the protection of freedom of expression contained in s. 3 of the Quebec Charter. Over and above its intrinsic value as expression, commercial expression which, as has been pointed out, protects listeners as well as speakers plays a significant role in enabling individuals to make informed economic choices, an important aspect of individual self‑fulfillment and personal autonomy. The Court accordingly rejects the view that commercial expression serves no individual or societal value in a free and democratic society and for this reason is undeserving of any constitutional protection.

 

60.                     Rather, the expression contemplated by ss. 58 and 69 of the Charter of the French Language is expression within the meaning of both s. 2( b )  of the Canadian  Charter  and s. 3 of the Quebec Charter. This leads to the conclusion that s. 58 infringes the freedom of expression guaranteed by s. 3 of the Quebec Charter and s. 69 infringes the guaranteed freedom of expression under both s. 2( b )  of the Canadian  Charter  and s. 3 of the Quebec Charter. Although the expression in this case has a commercial element, it should be noted that the focus here is on choice of language and on a law which prohibits the use of a language. We are not asked in this case to deal with the distinct issue of the permissible scope of regulation of advertising (for example to protect consumers) where different governmental interests come into play, particularly when assessing the reasonableness of limits on such commercial expression pursuant to s. 1  of the Canadian  Charter  or to s. 9.1 of the Quebec Charter. It remains to be considered whether the limit imposed on freedom of expression by ss. 58 and 69 is justified under either s. 1  of the Canadian  Charter  or s. 9.1 of the Quebec Charter, as the case may be.

 

                                                                   IX

 

Whether the Limit Imposed on Freedom of Expression by ss. 58 and 69 of the Charter of the French Language is Justified Under s. 9.1 of the Quebec Charter of Human Rights and Freedoms and s. 1  of the Canadian Charter of Rights and Freedoms 

 

61.                     The issues raised in this part are as follows: (a) the meaning of s. 9.1 of the Quebec Charter and whether its role and effect are essentially different from that of s. 1  of the Canadian  Charter ; (b) whether the requirement of the exclusive use of French by ss. 58 and 69 of the Charter of the French Language is a limit within the meaning of s. 9.1 and s. 1; (c) whether the material (hereinafter referred to as the s. 1 and s. 9.1 materials) relied on by the Attorney General of Quebec in justification of the limit is properly before the Court; and (d) whether the material justifies the prohibition of the use of any language other than French.

 

A.                The Meaning of s. 9.1 of the Quebec Charter of Human Rights and Freedoms

 

62.                     The issue here is whether s. 9.1 is a justificatory provision similar in its purpose and effect to s. 1  of the Canadian  Charter  and if so what is the test to be applied under it. Section 9.1 is worded differently from s. 1, and it is convenient to set out the two provisions again for comparison, as well as the test under s. 1. Section 9.1 of the Quebec Charter of Human Rights and Freedoms, which was added to the Charter by An Act to amend the Charter of Human Rights and Freedoms, S.Q. 1982, c. 61, s. 2 and entered into force by proclamation on October 1, 1983, reads as follows:

 

                   9.1. In exercising his fundamental freedoms and rights, a person shall maintain a proper regard for democratic values, public order and the general well‑being of the citizens of Québec.

 

                   In this respect, the scope of the freedoms and rights, and limits to their exercise, may be fixed by law.

 

Section 1  of the Canadian  Charter  provides:

 

                   1. The Canadian Charter of Rights and Freedoms  guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

 

The test under s. 1  of the Canadian  Charter  was laid down by this Court in R. v. Oakes, supra, and restated by the Chief Justice in R. v. Edwards Books and Art Ltd., supra, as follows at pp. 768‑69:

 

                   Two requirements must be satisfied to establish that a limit is reasonable and demonstrably justified in a free and democratic society. First, the legislative objective which the limitation is designed to promote must be of sufficient importance to warrant overriding a constitutional right. It must bear on a "pressing and substantial concern". Second, the means chosen to attain those objectives must be proportional or appropriate to the ends. The proportionality requirement, in turn, normally has three aspects: the limiting measures must be carefully designed, or rationally connected, to the objective; they must impair the right as little as possible; and their effects must not so severely trench on individual or group rights that the legislative objective, albeit important, is nevertheless outweighed by the abridgment of rights. The Court stated that the nature of the proportionality test would vary depending on the circumstances. Both in articulating the standard of proof and in describing the criteria comprising the proportionality requirement the Court has been careful to avoid rigid and inflexible standards.

 

63.                     It was suggested in argument that because of its quite different wording s. 9.1 was not a justificatory provision similar to s. 1 but merely a provision indicating that the fundamental freedoms and rights guaranteed by the Quebec Charter are not absolute but relative and must be construed and exercised in a manner consistent with the values, interests and considerations indicated in s. 9.1 ‑‑ "democratic values, public order and the general well‑being of the citizens of Québec." In the case at bar the Superior Court and the Court of Appeal held that s. 9.1 was a justificatory provision corresponding to s. 1  of the Canadian  Charter  and that it was subject, in its application, to a similar test of rational connection and proportionality. This Court agrees with that conclusion. The first paragraph of s. 9.1 speaks of the manner in which a person must exercise his fundamental freedoms and rights. That is not a limit on the authority of government but rather does suggest the manner in which the scope of the fundamental freedoms and rights is to be interpreted. The second paragraph of s. 9.1, however ‑‑ "In this respect, the scope of the freedoms and rights, and limits to their exercise, may be fixed by law" ‑‑ does refer to legislative authority to impose limits on the fundamental freedoms and rights. The words "In this respect" refer to the words "maintain a proper regard for democratic values, public order and the general well‑being of the citizens of Québec". Read as a whole, s. 9.1 provides that limits to the scope and exercise of the fundamental freedoms and rights guaranteed may be fixed by law for the purpose of maintaining a proper regard for democratic values, public order and the general well‑being of the citizens of Quebec. That was the view taken of s. 9.1 in both the Superior Court and the Court of Appeal. As for the applicable test under s. 9.1, Boudreault J. in the Superior Court quoted with approval from a paper delivered by Raynold Langlois, Q.C., entitled "Les clauses limitatives des Chartes canadienne et québécoise des droits et libertés et le fardeau de la preuve", and published in Perspectives canadiennes et européennes des droits de la personne (1986), in which the author expressed the view that under s. 9.1 the government must show that the restrictive law is neither irrational nor arbitrary and that the means chosen are proportionate to the end to be served. In the Court of Appeal, Bisson J.A. adopted essentially the same test. He said that under s. 9.1 the government has the onus of demonstrating on a balance of probabilities that the impugned means are proportional to the object sought. He also spoke of the necessity that the government show the absence of an irrational or arbitrary character in the limit imposed by law and that there is a rational link between the means and the end pursued. We are in general agreement with this approach. The Attorney General of Quebec submitted that s. 9.1 left more scope to the legislature than s. 1 and only conferred judicial control of "la finalité des lois", which this Court understands to mean the purposes or objects of the law limiting a guaranteed freedom or right, and not the means chosen to attain the purpose or object. What this would mean is that it would be a sufficient justification if the purpose or object of legislation limiting a fundamental freedom or right fell within the general description provided by the words "democratic values, public order and the general well‑being of the citizens of Québec". It cannot have been intended that s. 9.1 should confer such a broad and virtually unrestricted legislative authority to limit fundamental freedoms and rights. Rather, it is an implication of the requirement that a limit serve one of these ends that the limit should be rationally connected to the legislative purpose and that the legislative means be proportionate to the end to be served. That is implicit in a provision that prescribes that certain values or legislative purposes may prevail in particular circumstances over a fundamental freedom or right. That necessarily implies a balancing exercise and the appropriate test for such balancing is one of rational connection and proportionality.

 

B.                Whether the Prohibition of the Use of Any Language Other than French by ss. 58 and 69 of the Charter of the French Language is a "Limit" on Freedom of Expression Within the Meaning of s. 1  of the Canadian Charter  and s. 9.1 of the Quebec Charter

 

64.                     The respondents contended that ss. 58 and 69 of the Charter of the French Language were not subject to justification under s. 1  of the Canadian Charter of Rights and Freedoms  because they prescribe a denial or negation of freedom of expression rather than a limit on it within the meaning of that provision. In support of this contention they referred to the opinion to this effect of Deschênes C.J. in the Superior Court and of a majority of the Court of Appeal in Quebec Association of Protestant School Boards v. Procureur général du Québec, [1982] C.S. 673, at pp. 689‑93; [1983] C.A. 77, at p. 78. They submitted that while this Court did not rule on the general question whether a denial or negation of a guaranteed right or freedom could be a limit within s. 1, it did not expressly or implicitly disavow the opinion expressed by the Superior Court and the Court of Appeal (Attorney General of Quebec v. Quebec Association of Protestant School Boards, [1984] 2 S.C.R. 66, at p. 78). A similar submission was made with respect to the distinction between the negation of a right or freedom and a limit on it by the respondent in Irwin Toy, relying on the judgment of this Court in the Quebec Association of Protestant School Boards case. In the case at bar, although Boudreault J. did not allude to this question, Bisson J.A. in the Court of Appeal referred to it, without basing his judgment on it. He said he wondered whether it was even a case where the legislation was susceptible of justification under s. 1 since it was a case of a negation pure and simple of freedom of expression because s. 58 prohibited the use of any language other than French. He said he would be tempted to apply what was said by this Court in Attorney General of Quebec v. Quebec Association of Protestant School Boards, supra, quoting from the following passage of the Court's judgment at p. 88:

 

The provisions of s. 73 of Bill 101 collide directly with those of s. 23  of the Charter, and are not limits which can be legitimized by s. 1  of the Charter. Such limits cannot be exceptions to the rights and freedoms guaranteed by the Charter nor amount to amendments of the Charter. An Act of Parliament or of a legislature which, for example, purported to impose the beliefs of a State religion would be in direct conflict with s. 2 (a) of the Charter, which guarantees freedom of conscience and religion, and would have to be ruled of no force or effect without the necessity of even considering whether such legislation could be legitimized by s. 1. The same applies to Chapter VIII of Bill 101 in respect of s. 23  of the Charter.

 

65.                     In the Quebec Association of Protestant School Boards case, the minority language educational rights created by s. 23  of the Canadian  Charter  were, as the Court observed, of a very specific, special and limited nature, unlike the fundamental rights and freedoms guaranteed by other provisions. They were well defined rights for specific classes of persons. In the opinion of the Court, the effect of ss. 72 and 73 of Bill 101 was to create an exception to s. 23 for Quebec, that is, to make it inapplicable as a whole in Quebec. There was thus what amounted to a complete denial in Quebec of the rights created by s. 23. The extent of the denial was co‑extensive with the potential exercise of the very specific and limited rights created by s. 23. Such an exception to s. 23, as the Court characterized it, was tantamount to an impermissible attempt to override or amend s. 23. An exception of such effect could not be a limit within the meaning of s. 1  of the Charter. Thus in so far as the distinction between a complete denial of a right or freedom and a limitation of it is concerned, the Quebec Association of Protestant School Boards is a rather unique example of a truly complete denial of guaranteed rights ‑‑ a denial that is co‑extensive with the complete scope of the potential exercise of the rights. The decision is thus not authority for the proposition that where the effect of a legislative provision is to deny or prohibit the exercise of a guaranteed right or freedom in a limited area of its potential exercise that provision cannot be a limit on the right or freedom subject to justification under s. 1.

 

66.                     In the opinion of this Court, apart from the rare case of a truly complete denial of a guaranteed right or freedom in the sense indicated above, the distinction between the negation of a right or freedom and the limitation of it is not a sound basis for denying the application of s. 1  of the Charter. Many, if not most, legislative qualifications of a right or freedom in a particular area of its potential exercise will amount to a denial of the right or freedom to that limited extent. If this effect were to mean that s. 1 could have no application in such a case, the section could have little application in practice. On the other hand, the distinction between a limit that permits no exercise of a guaranteed right or freedom in a limited area of its potential exercise and one that permits a qualified exercise of it may be relevant to the application of the test of proportionality under s. 1. That was the sense in which Wilson J. was applying the distinction between a complete denial of a right or freedom and a limitation of it in R. v. Morgentaler, [1988] 1 S.C.R. 30, when she said at p. 183: "Section 251  of the Criminal Code  takes the decision away from the woman at all stages of her pregnancy. It is a complete denial of the woman's constitutionally protected right under s. 7, not merely a limitation on it. It cannot, in my opinion, meet the proportionality test in Oakes. It is not sufficiently tailored to the legislative objective and does not impair the woman's right "as little as possible". It cannot be saved under s. 1."

 

C.                The Admissibility of the s. 1 and s. 9.1 Materials Submitted in Justification of the Limit Imposed on Freedom of Expression by ss. 58 and 69 of the Charter of the French Language

 

67.                     In the Superior Court, the Attorney General of Quebec did not offer material in justification under s. 1  of the Canadian  Charter  or s. 9.1 of the Quebec Charter, presumably on the assumption that s. 2(b) did not apply by reason of the override provision in s. 214 of the Charter of the French Language and that s. 3 of the Quebec Charter of Human Rights and Freedoms did not yet take precedence over s. 58 of the Charter of the French Language. Moreover, at the time the case was heard in the Superior Court this Court had not yet given the indication of the nature of the onus on the government under s. 1 of the Canadian Char­ter, beginning with the observations in Law Society of Upper Canada v. Skapinker, [1984] 1 S.C.R. 357, at pp. 383‑84, Hunter v. Southam Inc., supra, at p. 169, and Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177, at p. 217, and culminating in the analysis of the onus under s. 1 to be found in R. v. Big M Drug Mart Ltd., supra, and R. v. Oakes, supra.

 

68.                     In the Court of Appeal the Attorney General of Quebec attached to his factum certain material of a justificatory nature which Bisson J.A. referred to as linguistic and sociological studies from Quebec and elsewhere and which the respondents describe in their factum in this Court as "numerous sociological, demographic and linguistic studies." The respondents moved to have this material struck from the record as not being in conformity with art. 507 of the Code of Civil Procedure and art. 10 of the Rules of Practice of the Court of Appeal respecting the parts of the record that must be attached to or form part of a factum. The ground of attack was presumably that the material did not form part of the record before the trial judge. The motion to strike was taken under reserve by the Court of Appeal but was never ruled on. Bisson J.A. held that even if the material were considered it would not justify the infringement of freedom of expression by the prohibition of the use of any language other than French.

 

69.                     It is not clear whether the justificatory material submitted by the Attorney General of Quebec in this Court includes only the items that were before the Court of Appeal or whether it includes other items. The respondents say that the Attorney General of Quebec attached to his factum in the Court of Appeal the studies which "are also referred to" in his factum in this Court. The Attorney General of Canada states that the material submitted by the Attorney General of Quebec in this Court consists of some but not all of the studies submitted in the Court of Appeal, as well as additional studies.

 

70.                     The material appended to the factum of the Attorney General of Quebec consists of general studies on sociolinguistics and language planning and articles, reports and statistics indicating the position of the French language in Quebec and Canada that is said to have given rise to and to justify the language planning policy reflected in the Charter of the French Language and earlier Quebec legislation having the same general purpose. The Attorney General of Quebec did not make an application for admission of the s. 1 and s. 9.1 materials as evidence pursuant to s. 67 of the Supreme Court Act, R.S.C. 1970, c. S‑19. In his submission, he took the position that the material was not evidence in the strict sense but referred to legislative facts of which the Court could take judicial notice. The respondents in this appeal did not strenuously renew their objection to the admission and consideration of the s. 1 and s. 9.1 materials, but came to Court prepared with submissions concerning the effect of the material. They submitted that, assuming the material properly formed part of the record, it did not justify the limit imposed on freedom of expression by ss. 58 and 69 of the Charter of the French Language. They conceded that the material showed that the purpose of the challenged legislation was of sufficient importance to warrant an interference with a guaranteed freedom but submitted that it did not satisfy the proportionality test. Thus the respondents, while suggesting that the material was not properly before the Court, argued the merits of the material in relation to the appropriate test under s. 1 and s. 9.1. The appellant Singer in the Devine appeal took strenuous objection to the suggestion that the Court should take judicial notice of the statistical material concerning the relative position of the French and English languages and the francophone and anglophone communities in Quebec, particularly in recent years. It submitted that some of the statistical material was biased or misleading and referred to other statistical analysis which in its submission conveyed a more accurate picture. Like the respondents in this appeal, the appellant Singer in Devine argued that the materials submitted by the Attorney General of Quebec did not satisfy the onus under s. 1.

 

71.                     In view of the fact that the parties did not appear to be taken by surprise or placed at an unfair disadvantage by the submission of the s. 1 and s. 9.1 materials in this Court, but showed themselves fully prepared to argue the merits of the material, which they did, this Court is of the opinion that the material should be considered as properly before the Court and should be considered by it. The material is of the kind that has been invited and considered by the Court in other cases involving the application of s. 1 of the Char­ter, without having been subjected to the evidentiary testing of the adversary process. It is material that is treated similarly to treatises and articles in other judicial contexts. Due regard should be given, however, to the submissions of the appellant Singer in Devine concerning some of the statistical material.

 

D.                Whether the s. 1 and s. 9.1 Materials Justify the Prohibition of the Use of Any Language Other than French

 

72.                     The section 1 and s. 9.1 materials consist of some fourteen items ranging in nature from the general theory of language policy and planning to statistical analysis of the position of the French language in Quebec and Canada. The material deals with two matters of particular relevance to the issue in the appeal: (a) the vulnerable position of the French language in Quebec and Canada, which is the reason for the language policy reflected in the Charter of the French Language; and (b) the importance attached by language planning theory to the role of language in the public domain, including the communication or expression by language contemplated by the challenged provisions of the Charter of the French Language. As to the first, the material amply establishes the importance of the legislative purpose reflected in the Charter of the French Language and that it is a response to a substantial and pressing need. Indeed, this was conceded by the respondents both in the Court of Appeal and in this Court. The vulnerable position of the French language in Quebec and Canada was described in a series of reports by commissions of inquiry beginning with the Report of the Royal Commission on Bilingualism and Biculturalism in 1969 and continuing with the Parent Commission and the Gendron Commission. It is reflected in statistics referred to in these reports and in later studies forming part of the materials, with due adjustment made in the light of the submissions of the appellant Singer in Devine with respect to some of the later statistical material. The causal factors for the threatened position of the French language that have generally been identified are: (a) the declining birth rate of Quebec francophones resulting in a decline in the Quebec francophone proportion of the Canadian population as a whole; (b) the decline of the francophone population outside Quebec as a result of assimilation; (c) the greater rate of assimilation of immigrants to Quebec by the anglophone community of Quebec; and (d) the continuing dominance of English at the higher levels of the economic sector. These factors have favoured the use of the English language despite the predominance in Quebec of a francophone population. Thus, in the period prior to the enactment of the legislation at issue, the "visage linguistique" of Quebec often gave the impression that English had become as significant as French. This "visage linguistique" reinforced the concern among francophones that English was gaining in importance, that the French language was threatened and that it would ultimately disappear. It strongly suggested to young and ambitious francophones that the language of success was almost exclusively English. It confirmed to anglophones that there was no great need to learn the majority language. And it suggested to immigrants that the prudent course lay in joining the anglophone community. The aim of such provisions as ss. 58 and 69 of the Charter of the French Language was, in the words of its preamble, "to see the quality and influence of the French language assured". The threat to the French language demonstrated to the government that it should, in particular, take steps to assure that the "visage linguistique" of Quebec would reflect the predominance of the French language.

 

73.                     The section 1 and s. 9.1 materials establish that the aim of the language policy underlying the Charter of the French Language was a serious and legitimate one. They indicate the concern about the survival of the French language and the perceived need for an adequate legislative response to the problem. Moreover, they indicate a rational connection between protecting the French language and assuring that the reality of Quebec society is communicated through the "visage linguistique". The section 1 and s. 9.1 materials do not, however, demonstrate that the requirement of the use of French only is either necessary for the achievement of the legislative objective or proportionate to it. That specific question is simply not addressed by the materials. Indeed, in his factum and oral argument the Attorney General of Quebec did not attempt to justify the requirement of the exclusive use of French. He concentrated on the reasons for the adoption of the Charter of the French Language and the earlier language legislation, which, as was noted above, were conceded by the respondents. The Attorney General of Quebec relied on what he referred to as the general democratic legitimacy of Quebec language policy without referring explicitly to the requirement of the exclusive use of French. In so far as proportionality is concerned, the Attorney General of Quebec referred to the American jurisprudence with respect to commercial speech, presumably as indicating the judicial deference that should be paid to the legislative choice of means to serve an admittedly legitimate legislative purpose, at least in the area of commercial expression. He did, however, refer in justification of the requirement of the exclusive use of French to the attenuation of this requirement reflected in ss. 59 to 62 of the Charter of the French Language and the regulations. He submitted that these exceptions to the requirement of the exclusive use of French indicate the concern for carefully designed measures and for interfering as little as possible with commercial expression. The qualifications of the requirement of the exclusive use of French in other provisions of the Charter of the French Language and the regulations do not make ss. 58 and 69 any less prohibitions of the use of any language other than French as applied to the respondents. The issue is whether any such prohibition is justified. 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. Since the evidence put to us by the government showed that the predominance of the French language was not reflected in the "vi­sage linguistique" of Quebec, the governmental response could well have been tailored to meet that specific problem and to impair freedom of expression minimally. Thus, 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 the Quebec Charter and 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. Such measures would ensure that the "visage linguistique" reflected the demography of Quebec: the predominant language is French. This reality should be communicated to all citizens and non‑citizens alike, irrespective of their mother tongue. But exclusivity for the French language has not survived the scrutiny of a proportionality test and does not reflect the reality of Quebec society. Accordingly, we are of the view that the limit imposed on freedom of expression by s. 58 of the Charter of the French Language respecting the exclusive use of French on public signs and posters and in commercial advertising is not justified under s. 9.1 of the Quebec Charter. In like measure, the limit imposed on freedom of expression by s. 69 of the Charter of the French Language respecting the exclusive use of the French version of a firm name is not justified under either s. 9.1 of the Quebec Charter or s. 1  of the Canadian  Charter .

 

                                                                    X

 

Do Sections 58 and 69 of the Charter of the French Language Infringe the Guarantee Against Discrimination Based on Language in s. 10 of the Quebec Charter of Human Rights and Freedoms?

 

74.                     In view of the above conclusion it is not necessary to the disposition of the appeal that the Court should pronounce on the contention of the respondents that ss. 58 and 69 of the Charter of the French Language are inoperative as infringing the guarantee against discrimination based on language in s. 10 of the Quebec Charter of Human Rights and Freedoms. In view, however, of the fact that this issue is also raised in the Devine appeal and the Superior Court and the Court of Appeal addressed it in both cases it is probably desirable that this Court should do so as well because of the general importance of the question.

 

75.                     For convenience s. 10 of the Quebec Charter is quoted again:

 

                   10. Every person has a right to full and equal recognition and exercise of his human rights and freedoms, without distinction, exclusion or preference based on race, colour, sex, pregnancy, sexual orientation, civil status, age except as provided by law, religion, political convictions, language, ethnic or national origin, social condition, a handicap or the use of any means to palliate a handicap.

 

                   Discrimination exists where such a distinction, exclusion or preference has the effect of nullifying or impairing such right.

 

76.                     Before considering the application of this provision to the challenged provisions of the Charter of the French Language it should be noted that the saving provision of s. 9.1 of the Quebec Charter of Human Rights and Freedoms does not apply to an infringement of s. 10. That is the necessary conclusion as to legislative intent to be drawn from the position of s. 9.1 as the last of the provisions in Chapter I, entitled "Fundamental Freedoms and Rights", of the Charter of Human Rights and Freedoms. Section 10 is in another chapter, Chapter I.1, entitled "Right to Equal Recognition and Exercise of Rights and Freedoms". There is no similar saving provision for infringement of the rights guaranteed by that chapter.

 

77.                     In the case at bar the disposition of the s. 10 issue in the Superior Court and the Court of Appeal was based, as indicated in Part III of these reasons, on what was said concerning this issue by those courts in Devine v. Procureur général du Québec, supra. In Devine, Dugas J. in the Superior Court rejected the contention based on s. 10 of the Quebec Charter on the ground that s. 58 of the Charter of the French Language did not on its face create a distinction based on language within the meaning of s. 10. As he put it, s. 58 applied to everyone regardless of their language of use. He conceded that s. 58 imposed a greater burden on anglophones by preventing them from using English, but he held that because s. 58 applied to everyone it did not constitute discrimination against anglophones based on their language. In the case at bar, Boudreault J. adopted the conclusion of Dugas J. on this issue for reasons given by him. On the appeal from his judgment, Bisson J.A. rejected the contention based on s. 10 for the reasons given by him in the Court of Appeal in Devine. There he held that s. 58 did not create a distinction based on language within the meaning of s. 10 because it placed everyone desiring to use public signs and posters and commercial advertising on the same footing, by which he must have meant that it applied to all regardless of their language of use, which was the reason given by Dugas J. for rejecting the contention based on s. 10. He acknowledged that non‑francophones would be subject to greater inconveniences than others as a result of s. 58 but he held that was not the criterion as to whether the provision created a distinction based on language within the meaning of s. 10. Section 58 did not on its face impose restrictions based on language on one group that it did not impose on others. There was therefore in his opinion no direct discrimination. Thus Bisson J.A. held that the question whether a challenged provision creates a distinction based on a prohibited ground within the meaning of s. 10 is to be determined on the basis of the concept of direct discrimination. He did, however, go on to consider, in view of the judgments of this Court in Ontario Human Rights Commission and O'Malley v. Simpsons‑Sears Ltd., [1985] 2 S.C.R. 536, and Bhinder v. Canadian National Railway Co., [1985] 2 S.C.R. 561, the application of the concept of adverse effect or indirect discrimination to the question whether s. 58 constituted discrimination based on language within the meaning of s. 10. After considering the judgments in O'Malley and Bhinder Bisson J.A. concluded that the concept of adverse effect discrimination did not require that the offending provision be annulled but only that there be reasonable accommodation of the persons adversely affected. He concluded that the Charter of the French Language and the Regulation respecting the language of commerce and business made the necessary accommodation by the exceptions to the requirement of exclusive use of French in s. 58. In any event, he observed that the appellants in Devine did not seek accommodation but rather, on the basis of direct discrimination, that the challenged provisions be annulled. The reasons of Bisson J.A. in Devine lead to the conclusion that the concept of direct discrimination and not that of adverse effect or indirect discrimination is to be applied in determining whether there is a distinction based on a prohibited ground within the meaning of s. 10.

 

78.                     In its recent judgment in Forget v. Quebec (Attorney General), [1988] 2 S.C.R. 90, this Court had to consider the application of s. 10 of the Quebec Charter of Human Rights and Freedoms to certain provisions of the regulations adopted by the Office de la langue française respecting the knowledge of the official language necessary to obtain a permit from a professional corporation. Lamer J., delivering the judgment of the majority of the Court, stated the requirements for a finding of discrimination under s. 10 as follows (at p. 98):

 

                   It appears from s. 10  of the Charter and the decision in Johnson v. Commission des affaires sociales, [1984] C.A. 61, with which I agree on this point, that three elements are necessary to establish discrimination: (1) a "distinction, exclusion or preference", (2) based on one of the grounds listed in the first paragraph, and (3) which "has the effect of nullifying or impairing" the right to full and equal recognition and exercise of a human right or freedom.

 

79.                     Section 2(a) of the Regulation created a presumption of appropriate knowledge of French in favour of candidates who had taken at least three years of French at the post‑primary level, and s. 3 of the Regulation required candidates, such as the respondent Forget, who could not benefit from this presumption of knowledge, to submit to a test to establish the appropriate knowledge of French. Lamer J. held that this differential treatment of two classes of candidates for entry to a profession requiring a knowledge of French appropriate to the practice of it created a distinction within the meaning of s. 10 of the Quebec Charter of Human Rights and Freedoms but the question was whether it created a distinction based on language within the meaning of the section. Lamer J. held that the word "language" in s. 10 means the language of the person, that is, his or her mother tongue or language of use. He then considered the contention of the appellant that the distinction created by ss. 2(a) and 3 of the Regulation was one based not on the language of the person but on the language in which the candidate had received his or her post‑primary instruction. On this issue Lamer J. concluded that the distinction, although appearing on its face to be one based on the language of instruction, was in reality one based on language of the person. Referring to the appellant's contention he said (at pp. 100‑101):

 

                   In my view, however, this interpretation does actually withstand a more realistic analysis of the situation. Of course, it is true that any person who has taken at least three years of post‑primary instruction in French is exempt from the test, whatever his language. Still, one has to recognize that as a general rule a person does his studies in his own language. Accordingly, most of the candidates able to benefit from the French knowledge presumption are French‑speaking ‑‑ for the purposes of this discussion I will call them "francophones" ‑‑ since they are the ones who have received their instruction in French. Conversely, as in most cases non‑francophones study in a language other than French, they are the ones who must take the test.

 

                   In light of the foregoing, I feel that the distinction created by the subject Regulations is based on language within the meaning of s. 10  of the Charter. The two groups of candidates that result from this distinction are divided along language lines ‑‑ the fact that in general their mother tongue or language of use is, or is not, French. In other words, most candidates who benefit from the presumption will be francophones, while those who take the test will be for the most part non‑francophones.

 

                   Of course the groups resulting from application of the Regulations are not entirely homogeneous, since as we have seen non‑francophones may sometimes do their studies in French and vice versa. Thus not all francophones will be exempt from the test, and not all non‑francophones will have to take it. The fact remains, however, that as a rule the majority in each group consists of francophones on the one hand and non‑francophones on the other, whatever limited exceptions may occur. As the groups of candidates affected by the distinction are identified along language lines, to say that the distinction is not based on language would in my opinion be adopting too narrow a construction.

 

80.                     Lamer J. concluded on the s. 10 issue that while the challenged provisions of the Regulation created a distinction based on language within the meaning of the first paragraph of s. 10 they did not constitute discrimination within the meaning of the second paragraph because the distinction did not have the effect of nullifying or impairing the right, referred to in the first paragraph, to full and equal recognition and exercise of a human right or freedom, which was said in this case to be the right recognized by s. 17 of the Quebec Char­ter to be admitted to a professional corporation without discrimination. In reaching this conclusion Lamer J. emphasized that the validity of s. 35 of the Charter of the French Language, which imposed the requirement of a knowledge of French appropriate to the exercise of a profession as a condition of the issue of a permit by a professional corporation, had not been challenged by the respondent. He reasoned that since this requirement had to be met the distinction based on language created by the Regulation favoured rather than discriminated against persons in the position of the respondent who, not being able to benefit from the reasonable presumption of knowledge arising from a post‑primary education in French, were permitted to satisfy the requirement in the only way they could, by undergoing a test.

 

81.                     We have referred to the judgment of the Court in Forget at considerable length because it suggests that, in determining whether a distinction is one based on a prohibited ground within the meaning of s. 10 of the Quebec Charter, one must consider the effect of the distinction and not merely what appears on its face. That is the necessary conclusion to be drawn from the judgment. The distinction between the two classes of persons, one not required to take the test and the other required to do so, was created on the face of the Regulation. What the Court did was to characterize the basis of the distinction as language of use rather than language of instruction because of what it conceived to be the necessary identity in the majority of cases between language of instruction and language of use. This conclusion was based on an assumption, or a fact of which the Court took judicial notice, concerning the language of use of the majority of persons taking post‑primary instruction in French and that of the majority who take their post‑primary instruction in English. The determination of the Court was that because of that relationship between language of instruction and language of use, the distinction was in its effect one based on language of use.

 

82.                     Thus in addressing the question whether s. 58 of the Charter of the French Language infringes the guarantee against discrimination based on language in s. 10 of the Quebec Charter of Human Rights and Freedoms we are obliged to consider the effect of s. 58, in so far as that may be ascertained. The second observation to be made here is that in order for a distinction based on a prohibited ground to constitute discrimination within the meaning of s. 10 it must have the effect of nullifying or impairing the right to full and equal recognition and exercise of a human right or freedom, which must mean a human right or freedom recognized by the Quebec Charter of Human Rights and Freedoms. With these observations in mind we turn to the question whether s. 58 infringes s. 10. It purports, as was said by the Superior Court and the Court of Appeal, to apply to everyone, regardless of their language of use, the requirement of the exclusive use of French. It has the effect, however, of impinging differentially on different classes of persons according to their language of use. Francophones are permitted to use their language of use while anglophones and other non‑francophones are prohibited from doing so. Does this differential effect constitute a distinction based on language within the meaning of s. 10 of the Quebec Charter? In this Court's opinion it does. Section 58 of the Charter of the French Language, because of its differential effect or impact on persons according to their language of use, creates a distinction between such persons based on language of use. It is then necessary to consider whether this distinction has the effect of nullifying or impairing the right to full and equal recognition and exercise of a human right or freedom recognized by the Quebec Charter. The human right or freedom in issue in this case is the freedom to express oneself in the language of one's choice, which has been held to be recognized by s. 3 of the Quebec Charter. In this case, the limit imposed on that right was not a justifiable one under s. 9.1 of the Quebec Charter. The distinction based on language of use created by s. 58 of the Charter of the French Language thus has the effect of nullifying the right to full and equal recognition and exercise of this freedom. Section 58 is therefore also of no force or effect as infringing s. 10 of the Quebec Charter. The same conclusion must apply to s. 69 of the Charter of the French Language. We note that since one of the respondents, Valerie Ford, is an individual and not a corporation, it is unnecessary in this case to decide whether corporations are entitled to claim the benefit of equality guarantees and we do not do so.

 

83.                     For these reasons the appeal is dismissed with costs and the constitutional questions are answered as follows:

 

1.                Are section 214 of the Charter of the French Language, R.S.Q. 1977, c. C‑11, as enacted by S.Q. 1982, c. 21, s. 1, and s. 52 of An Act to amend the Charter of the French Language, S.Q. 1983, c. 56, inconsistent with s. 33(1)  of the Constitution Act, 1982  and therefore inoperative and of no force or effect under s. 52(1) of the latter Act?

 

Answer:       No, except in so far as s. 214 is given retrospective effect by s. 7 of An Act respecting the Constitution Act, 1982, S.Q. 1982, c. 21.

 

2.                If the answer to question 1 is affirmative, to the extent that they require the exclusive use of the French language, are ss. 58 and 69, and ss. 205 to 208 to the extent they apply thereto, of the Charter of the French Language, R.S.Q. 1977, c. C‑11, as amended by S.Q. 1983, c. 56, inconsistent with the guarantee of freedom of expression under s. 2( b )  of the Canadian Charter of Rights and Freedoms ?

 

Answer:       In so far as s. 214 of the Charter of the French Language has ceased to have effect but s. 52 of An Act to amend the Charter of the French Language remains in effect, s. 58 of the Charter of the French Language is protected from the application of the Canadian Charter of Rights and Freedoms  but it is inoperative as infringing the guarantee of freedom of expression in s. 3 of the Quebec Charter of Human Rights and Freedoms and the guarantee against discrimination based on language in s. 10 of the Quebec Charter. In so far as s. 214 of the Char­ter of the French Language has ceased to have effect, s. 69 thereof is inconsistent with the guarantee of freedom of expression under s. 2( b )  of the Canadian Charter of Rights and Freedoms . Sections 205 to 208 of the Charter of the French Language to the extent they apply to s. 69 thereof are inconsistent with the guarantee of freedom of expression under s. 2( b )  of the Canadian Charter of Rights and Freedoms . Section 69 of the Charter of the French Language, and ss. 205 to 208 thereof, to the extent they apply to ss. 58 and 69, are also inconsistent with the guarantee of freedom of expression under s. 3 of the Quebec Charter of Human Rights and Freedoms.

 

3.                If the answer to question 2 is affirmative in whole or in part, are ss. 58 and 69, and ss. 205 to 208 to the extent they apply thereto, of the Charter of the French Language, R.S.Q. 1977, c. C‑11, as amended by S.Q. 1983, c. 56, justified by the application of s. 1  of the Canadian Charter of Rights and Freedoms  and therefore not inconsistent with the Constitution Act, 1982 ?

 

Answer:       Section 58 of the Charter of the French Language is not justified under s. 9.1 of the Quebec Charter of Human Rights and Freedoms. Section 69 of the Charter of the French Language, and ss. 205 to 208 thereof, to the extent they apply to s. 69, are not justified under s. 1  of the Canadian Charter of Rights and Freedoms  and are therefore inconsistent with the Constitution Act, 1982 . Nor is s. 69 of the Charter of the French Language, or ss. 205 to 208 thereof, to the extent they apply to ss. 58 and 69, justified under s. 9.1 of the Quebec Charter of Human Rights and Freedoms.

 

                   Appeal dismissed with costs.

 

                   Solicitors for the appellant: Yves de Montigny and Jean‑K. Samson, Ste‑Foy.

 

                   Solicitors for the respondents: Yarosky, Fish, Isaacs & Daviault, Montréal; Clarkson, Tétrault, Montréal.

 

                   Solicitors for the intervener the Attorney General of Canada: Piché, Emery, Montréal; André Bluteau and René LeBlanc, Ottawa.

 

                   Solicitor for the intervener the Attorney General for Ontario: Richard F. Chaloner, Toronto.

 

                   Solicitor for the intervener the Attorney General for New Brunswick: Gordon F. Gregory, Fredericton.