devine v. quebec (attorney general), [1988] 2 S.C.R. 790

Allan Singer Ltd. Appellant

v.

The Attorney General of Quebec Respondent

and

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

indexed as: devine v. quebec (attorney general)

File No.: 20297.

1987: November 18, 19; 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 ‑‑ Distribution of legislative powers ‑‑ Language ‑‑ Provincial legislation regulating the use of French in commerce and business ‑‑ Whether provincial legislation ultra vires the provincial legislature ‑‑ Whether provincial legislation invades federal jurisdiction with respect to criminal law and interprovincial trade and commerce ‑‑ Whether provincial legislation constitutes an obstacle to mobility ‑‑ Constitution Act, 1867, ss. 91, 92 ‑‑ Charter of the French Language, R.S.Q., c. C‑11, ss. 52, 57, 58, 59, 60, 61 ‑‑ Regulation respecting the language of commerce and business, R.R.Q., c. C‑11, r. 9.

Constitutional law ‑‑ Charter of Rights ‑‑ Application ‑‑ Exception where express declaration ‑‑ Provincial legislation regulating the use of French in commerce and business ‑‑ Whether provincial legislation protected from the application of ss. 2(b) and 15 of the Canadian Charter of Rights and Freedoms by a valid and subsisting override provision ‑‑ Canadian Charter of Rights and Freedoms, s. 33 ‑‑ An Act to amend the Charter of the French Language, S.Q. 1983, c. 56, s. 52 ‑‑ Charter of the French Language, R.S.Q., c. C‑11, ss. 52, 57, 58, 59, 60, 61, 214 ‑‑ Regulation respecting the language of commerce and business, R.R.Q., c. C‑11, r. 9.

Constitutional law ‑‑ Charter of Rights ‑‑ Freedom of expression ‑‑ Provincial legislation regulating language of business and commerce ‑‑ Legislation providing for the exclusive or joint use of French in certain commercial activities ‑‑ 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 ‑‑ Charter of the French Language, R.S.Q., c. C‑11, ss. 57, 59, 60, 61 ‑‑ Regulation respecting the language of commerce and business, R.R.Q., c. C‑11, r. 9.

Civil rights ‑‑ Provincial human rights legislation ‑‑ Freedom of expression ‑‑ Provincial legislation regulating language of business and commerce ‑‑ Legislation providing for the exclusive or joint use of French in certain commercial activities ‑‑ 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. 52, 57, 58, 59, 60, 61 ‑‑ Regulation respecting the language of commerce and business, R.R.Q., c. C‑11, r. 9.

Civil rights ‑‑ Discrimination based on language ‑‑ Provincial legislation regulating language of business and commerce ‑‑ Legislation providing for the exclusive or joint use of French in certain commercial activities ‑‑ 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. 52, 57, 58, 59, 60, 61 ‑‑ Regulation respecting the language of commerce and business, R.R.Q., c. C‑11, r. 9.

By an action in nullity, appellant challenged the validity of ss. 52, 57, 58, 59, 60 and 61 of the Charter of the French Language, R.S.Q., c. C‑11, and the Regulation respecting the language of commerce and business. Sections 52 and 57 require that certain items be drawn up in French. These sections, read with s. 89 of the Charter of the French Language, permit the use of another language together with the French. Section 58 requires that "Public signs and posters and commercial advertising shall be solely in" French. Sections 59, 60 and 61 create exceptions to s. 58. In the Superior Court, appellant contended that the challenged provisions of the Charter of the French Language were ultra vires the Quebec legislature and that they infringed 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. The Superior Court dismissed the action and the Court of Appeal affirmed the judgment. In this Court, appellant raised a new ground of appeal contending that the challenged provisions of the Charter of the French Language infringed the guarantee of freedom of expression in s. 2(b) of the Canadian Charter of Rights and Freedoms and the right to equality guaranteed by s. 15 of the Canadian Charter.

Held: The appeal should be allowed in part. Sections 52 and 57 to 61 of the Charter of the French Language are intra vires the provincial legislature. Sections 57, 59, 60 and 61, as well as ss. 8, 9, and 12 to 19 of the Regulation respecting the language of commerce and business, infringe s. 2(b) of the Canadian Charter and, except s. 57, are not justified under s. 1 of the Canadian Charter. Sections 52 and 57 to 61, as well as ss. 8, 9, and 12 to 19 of the Regulation, infringe s. 3 of the Quebec Charter and, except ss. 52 and 57, are not justified under s. 9.1 of the Quebec Charter. Section 58 to 61, as well as ss. 8, 9, and 12 to 19 of the Regulation, infringe s. 10 of the Quebec Charter.

(a) Constitution Act, 1867

A law prescribing that a particular language or languages must or may be used in certain situations will be classified for constitutional purposes not as a law in relation to language, but as a law in relation to the institutions or activities that the provision covers. Language is not an independent matter of legislation but is rather "ancillary" to the exercise of jurisdiction with respect to some class of subject matter assigned to Parliament or the provincial legislatures by the Constitution Act, 1867. In order to be valid, provincial legislation with respect to language must thus be truly in relation to an institution or activity that is otherwise within provincial legislative jurisdiction. In this case, the challenged provisions, whether they require the "exclusive use" or the "joint use" of French, are all in relation to commerce within the province and are therefore intra vires the Quebec legislature. That the overall object of the Charter of the French Language is the enhancement of the status of the French language in Quebec does not make the challenged provisions any less an intended regulation of an aspect of commerce within the province.

Section 58 of the Charter of the French Language, as a prohibition with penal consequences of the use of any language other than French, is not ultra vires the provincial legislature as constituting criminal law. Section 58 cannot be viewed in isolation from the other provisions of the Charter of the French Language and the Regulation. Together they constitute a regulatory scheme directed to an aspect of commercial activity‑‑the linguistic basis on which certain commercial activities may be carried on. This is not the prohibition of the use of language in and for itself as constituting conduct having affinity with some traditional criminal law concern such as morality or public order.

Finally, the challenged provisions requiring the "joint use" of French do not constitute an unconstitutional barrier on mobility. These provisions are not designed to prevent people from entering the province. They are simply conditions of doing business in the province with which anyone may comply.

(b) Application of Canadian and Quebec Charters

For the reasons given in Ford v. Quebec (Attorney General), 1988 CanLII 19 (SCC), [1988] 2 S.C.R. 712, ss. 52 and 58 of the Charter of the French Language, replaced respectively by ss. 11 and 12 of An Act to amend the Charter of the French Language, S.Q. 1983, c. 56, are protected from the application of ss. 2(b) and 15 of the Canadian Charter by a valid and subsisting override provision, enacted pursuant to s. 33 of the Canadian Charter, in the form of s. 52 of the amending Act. Sections 57, 59, 60 and 61 of the Charter of the French Language and the Regulation, however, are no longer protected from the application of ss. 2(b) and 15 of the Canadian Charter, since s. 214 of the Charter of the French Language, the override provision in that statute, ceased to have effect on June 23, 1987. The challenged provisions are all subject to s. 3 of the Quebec Charter.

(c) Freedom of Expression

For the reasons given in Ford, the matters referred to in ss. 57, 59, 60 and 61 of the Charter of the French Language constitute expression within the meaning of s. 2(b) of the Canadian Charter, and the freedom of expression guaranteed by s. 2(b) includes the freedom to express oneself in the language of one's choice. This analysis applies equally to these sections and to ss. 52 and 58 of the Charter of the French Language as concerns s. 3 of the Quebec Charter. That freedom is infringed not only by a prohibition of the use of one's language of choice but also by a legal requirement compelling one to use a particular language. Sections 57, 59, 60 and 61 of the Charter of the French Language, in so far as they compel the use of the French language, infringe the freedom of expression guaranteed by s. 2(b) of the Canadian Charter. These sections and ss. 52 and 58 similarly infringe the freedom of expression guaranteed by s. 3 of the Quebec Charter.

(d) Reasonable Limits

For the reasons given in Ford, legislation requiring the exclusive use of French is not justified under s. 1 of the Canadian Charter or s. 9.1 of the Quebec Charter. The requirement of either joint or predominant use is justified under both sections. In Ford, s. 58 of the Charter of the French Language, which requires the exclusive use of French, did not survive the s. 9.1 scrutiny and was struck down. Once section 58 is struck down, ss. 59, 60, 61 and ss. 8, 9, 12, 13, 14, 15, 16 and 19 of the Regulation, which create exceptions to s. 58, must be struck down as well. A single scheme is being dealt with here, and once the parent section which institutes that scheme has been found unconstitutional, the Court must proceed to strike down those exceptions which are necessarily connected to the general rule. In that way, distortions and inconsistencies of legislative intention do not result from finding the major component of a comprehensive legislative regime contrary to the Constitution. Furthermore, because s. 69 of the Charter of the French Language has been struck down in Ford, the exceptions to s. 69 prescribed by ss. 17 and 18 of the Regulation are also struck down. Had the appellant contested the validity of s. 62, which also creates an exception to s. 58, it too would have been struck down. Sections 52 and 57, however, should be preserved as they neither cause unintended results in the overall legislative scheme‑‑they are not dependent on s. 58‑‑nor conflict with s. 2(b) of the Canadian Charter or s. 3 of the Quebec Charter as interpreted in Ford. Read with s. 89 of the Charter of the French Language, ss. 52 and 57 permit the use of French together with another language. Sections 52 and 57 are therefore sustainable under s. 9.1 of the Quebec Charter, and s. 57‑‑the only one of the two subject to the Canadian Charter‑‑is sustainable thereunder by virtue of s. 1.

(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. Sections 52 and 57 of the Charter of the French Language do create a distinction based on language of use but do not have the effect of impairing or nullifying rights guaranteed under s. 3. The human right or freedom in issue in this case is freedom of expression guaranteed by s. 3 of the Quebec Charter. This right extends to protect the freedom to express oneself in the language of one's choice but it does not extend to guarantee a right to express oneself exclusively in one's own language. This result was reached by operation of s. 9.1, which does not limit the application of s. 10 but does limit the application of s. 3. Whenever it is alleged that a distinction on a ground prohibited by s. 10 has the effect of impairing or nullifying a right under s. 3, the scope of s. 3 must still be determined in light of s. 9.1. Where, as here, s. 9.1 operates to limit the scope of freedom of expression guaranteed under s. 3, s. 10 cannot be invoked to circumvent those reasonable limits and to substitute an absolute guarantee of free expression. On the other hand, having specified the scope of free expression, s. 9.1 cannot be invoked to justify a limit upon equal recognition and exercise of the right guaranteed by s. 3. Sections 52 and 57 of the Charter of the French Language do not, therefore, infringe the guarantee against discrimination based on language in s. 10 of the Quebec Charter.

(f) Equality Before the Law

Because s. 57 of the Charter of the French Language infringes s. 2(b) of the Canadian Charter, it is unnecessary to decide whether it also infringes s. 15 of the Canadian Charter. In any event, the conclusion regarding the operation of s. 1 of the Canadian Charter with respect to the prima facie breach of s. 2(b) would stand even if the prima facie breach of the Canadian Charter at issue was a breach of s. 15.

Cases Cited

Applied: Ford v. Quebec (Attorney General), 1988 CanLII 19 (SCC), [1988] 2 S.C.R. 712; Cusson v. Robidoux, 1975 CanLII 199 (SCC), [1977] 1 S.C.R. 650; Forget v. Quebec (Attorney General), 1988 CanLII 51 (SCC), [1988] 2 S.C.R. 90; referred to: Jones v. Attorney General of New Brunswick, 1974 CanLII 164 (SCC), [1975] 2 S.C.R. 182; Rio Hotel Ltd. v. New Brunswick (Liquor Licensing Board), 1987 CanLII 72 (SCC), [1987] 2 S.C.R. 59; R. v. Big M Drug Mart Ltd., 1985 CanLII 69 (SCC), [1985] 1 S.C.R. 295; R. v. Morgentaler, 1988 CanLII 90 (SCC), [1988] 1 S.C.R. 30; R. v. Oakes, 1986 CanLII 46 (SCC), [1986] 1 S.C.R. 103; R. v. Edwards Books and Art Ltd., 1986 CanLII 12 (SCC), [1986] 2 S.C.R. 713.

Statutes and Regulations Cited

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

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

Canadian Charter of Rights and Freedoms, ss. 1, 2(b), 6, 15, 33.

Charter of Human Rights and Freedoms, R.S.Q., c. C‑12 [formerly S.Q. 1975, c. 6], 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], 15, 52 [repl. 1982, c. 61, s. 16].

Charter of the French Language, R.S.Q., c. C‑11 [formerly S.Q. 1977, c. 5], ss. 1, 52 [repl. 1983, c. 56, s. 11], 57, 58 [repl. 1983, c. 56, s. 12], 59, 60, 61, 62 [repl. 1983, c. 56, s. 13], 69, 89, 205 [am. 1986, c. 58, s. 15], 206 [am. 1986, c. 58, s. 15], 207, 208, 214 [en. 1982, c. 21, s. 1].

Constitution Act, 1867, ss. 91, 92, 121, 133.

Constitution Act, 1982, s. 52.

Regulation respecting the language of commerce and business, R.R.Q., c. C‑11, r. 9.

Authors Cited

Chevrette, François. "La disposition limitative de la Charte des droits et libertés de la personne: le dit et le non‑dit" (1987), 21 R.J.T. 461.

Hogg, Peter W. Constitutional Law of Canada, 2nd ed. Toronto: Carswells, 1985.

Le Dain, Gerald. "The Supervisory Jurisdiction in Quebec" (1957), 35 Can. Bar Rev. 788.

APPEAL from a judgment of the Quebec Court of Appeal, 1986 CanLII 3951 (QC CA), [1987] R.J.Q. 50, 5 Q.A.C. 81, 36 D.L.R. (4th) 321, affirming a judgment of the Superior Court, [1982] C.S. 355, dismissing an action in nullity challenging certain provisions of the Charter of the French Language. Appeal allowed in part.

Joseph Eliot Magnet, for the appellant.

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

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

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

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

The following is the judgment delivered by

1.

Introduction

The Court‑‑This appeal raises the following questions:

1. Whether ss. 52 (formerly 53), 57, 58, 59, 60 and 61 of the Charter of the French Language, R.S.Q., c. C‑11, purporting to regulate the use of French and other languages in commerce and business, and the Regulation respecting the language of commerce and business, R.R.Q., c. C‑11, r. 9, are ultra vires the Legislature of the Province of Quebec under the Constitution Act, 1867;

2. Whether there is a valid and subsisting override provision, enacted pursuant to s. 33 of the Canadian Charter of Rights and Freedoms, which protects the above provisions from the application of the Canadian Charter;

3. Whether the above provisions 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

4. Whether the above provisions infringe the right to equality guaranteed by s. 15 of the Canadian Charter of Rights and Freedoms and the guarantee against discrimination based on language in s. 10 of the Quebec Charter of Human Rights and Freedoms.

5. The appeal is from the judgment on December 22, 1986 of the Quebec Court of Appeal (Monet, Bisson and Chouinard JJ.A.; Montgomery and Paré JJ.A., dissenting), 1986 CanLII 3951 (QC CA), [1987] R.J.Q. 50, 5 Q.A.C. 81, 36 D.L.R. (4th) 321, dismissing the appeal from the judgment on March 26, 1982 of Dugas J. in the Superior Court for the District of Montréal, [1982] C.S. 355, which dismissed the appellant's action in nullity to have ss. 53, 57, 58, 59, 60 and 61 of the Charter of the French Language and the Regulation respecting the language of commerce and business, declared null and void as ultra vires the Quebec legislature and as infringing ss. 3, 10 and 15 of the Quebec Charter of Human Rights and Freedoms, S.Q. 1975, c. 6. The issues with respect to the Canadian Charter of Rights and Freedoms were raised for the first time in this Court.

I

The Appellant's Action in Nullity

3.

The Appellant's Action in Nullity

In its declaration, re‑amended on November 26, 1981, the appellant Allan Singer Ltd., which was one of several plaintiffs in the Superior Court, another being Victor Herbert Devine, whose name appears in the style of cause in the judgments of the Superior Court and the Court of Appeal, alleges that it carries on business as a printer and stationer on Sherbrooke St. in Montréal under a provincial charter; that its business is of long standing; that it services principally an anglophone clientele; that it desires to service that clientele in the English language; and that it makes its business known by means of an English language sign above its entryway, posted some thirty years ago. The appellant further indicates its interest in its action in nullity by reference to administrative and penal procedures taken against it in application of the Charter of the French Language for displaying a sign in English outside its premises. The declaration sets out the submissions with respect to the constitutional validity of the challenged provisions under the division of powers and indicates the reliance to be placed on the following provisions of the Quebec Charter of Human Rights and Freedoms: s. 3 respecting freedom of expression, and ss. 10 and 15 respecting discrimination. The declaration concludes for the following relief: (a) a declaration that the challenged provisions of the Charter of the French Language and the Regulation respecting the language of commerce and business are ultra vires the Quebec legislature; and (b) subsidiarily, that they are of no force or effect as infringing provisions of the Quebec Charter of Human Rights and Freedoms.

4. Sections 1, 52 (formerly 53), 57, 58, 59, 60, 61, 62, and 89 of the Charter of the French Language provide:

5. French is the official language of Québec.

6. Catalogues, brochures, folders and any similar publications must be drawn up in French.

7. Application forms for employment, order forms, invoices, receipts and quittances shall be drawn up in French.

8. 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.

59. Section 58 does not apply to advertising carried in news media that publish a language other than French, or to messages of a religious, political, ideological or humanitarian nature, if not for a profit motive.

60. Firms employing not over four persons including the employer may erect signs and posters in both French and another language in their establishments. However, the inscriptions in French must be given at least as prominent display as those in the other language.

61. Signs and posters respecting cultural activities of a particular ethnic group in any way may be in both French and the language of that ethnic group.

62. In commercial establishments specializing in foreign national specialities or the specialities of a particular ethnic group, signs and posters may be both in French and in the relevant foreign national language or the language of that ethnic group.

Signs and posters may be posted in the same manner on the outside of establishments described in the first paragraph.

The second paragraph does not apply to establishments specializing in the sale of products used or consumed in Québec as commonly as products that are not foreign specialities or the specialities of a particular ethnic group.

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

90. The Regulation respecting the language of commerce and business, which is too detailed to be quoted in its entirety, provides for exceptions to the application of the above provisions of the Charter of the French Language. Of particular relevance to the issues in the appeal are ss. 8, 9, 12, 13, 14, 15, 16 and 19 which prescribe exceptions to the application of s. 58 of the Charter of the French Language as follows:

91. Signs and posters and displayed commercial advertising relating to a publication, book, record, tape, film or any other similar cultural or educational product may be both in French and in one or several of the languages of the product.

Signs and posters and displayed commercial advertising relating to a greeting card, agenda or calendar that is not for advertising purposes may be both in French and in one or several of the languages of the product.

Signs and posters and displayed commercial advertising relating to a show, speech, course, seminar, talk, radio or television broadcast, or any similar cultural or educational activity may be both in French and in one or several of the languages of that activity.

9. Commercial advertising that is not displayed such as catalogues, brochures, folders and other similar advertising publications and documents relating to a publication, book, record, tape, film or any other similar cultural or educational product may be:

(a) in one or several of the languages of the product to the extent that the product is in one or several languages other than French; or

(b) both in French and in one or several of the languages of the product; or

(c) both in French and in one or several other languages where the product has no specific language.

Commercial advertising that is not displayed, as referred to above, relating to a show, speech, course, seminar, talk, radio or television broadcast or any similar cultural or educational activity may be exclusively in one or several of the languages of the activity to the extent that the activity is in one or several languages other than French or both in French and in one or several of the languages of the activity.

12. Section 58 of the Act does not apply to a message that a natural person posts up on his own behalf at a place that he uses exclusively as a private dwelling.

The same applies for any message posted up on the inside or on the outside of a private means of transport, used for non‑commercial purposes, belonging to a natural person.

13. Signs and posters and commercial advertising relating to an event intended for an international public or to an event the majority of whose participants come from outside Québec may be both in French and in one or several other languages.

However, in each of these cases, such messages must be directly related to the nature and to the manifest purpose of the event.

14. During a convention, fair, exhibition or conference intended solely for a specialized or limited public, section 58 of the Act does not apply to signs and posters and commercial advertising intended for that public in a place directly related to the activities of the event.

15. Subject to section 9, distribution in a public place of catalogues, brochures, folders and similar advertising publications or documents written in one or several languages other than French is permitted if they are available there in French under no less favourable conditions of accessibility and quality.

The French text of the catalogues, brochures, folders and similar advertising publications or documents that are distributed in a public place must constitute a separate publication.

Catalogues, brochures, folders and similar advertising publications or documents for distribution elsewhere than in a public place may be written both in French and in one or several other languages within the same publication.

Distribution of those catalogues, brochures, folders and similar advertising publications or documents written in one or several languages other than French, elsewhere than in a public place, to a natural person is permitted where that person requests it in writing. Where such written request has been made, it is valid for any similar publication or document from the same firm and remains in effect until its effect is cancelled by another written request from the same natural person.

16. The following may appear exclusively in one or several languages other than French on signs and posters, in commercial advertising and in inscriptions relating to a product as well as in any other document:

(a) the firm name of a firm established exclusively outside Québec;

(b) a trade mark recognized within the meaning of the Trade Marks Act (R.S.C., 1970, c. T‑10) before 26 August 1977;

(c) a name of origin, a denomination of a typical product or a speciality with a foreign name, a heraldic motto or any other non‑commercial motto;

(d) a place name, a family name, the name of a personality or character, as well as the distinctive name of a cultural product or the distinctive name of any other product if the latter name was used before 25 July 1979.

19. Commercial advertising and signs and posters must appear exclusively in French when placed on the inside or on the outside of any means of transport such as vehicles, airplanes, trains, or ships if those vehicles, airplanes, trains or ships are ordinarily used to transport passengers or freight in Québec, except for messages concerning safety or health. Those messages may appear both in French and in one or several other languages.

Commercial advertising, signs and posters and firm names may appear both in French and in one or several other languages if placed on the inside or on the outside of any means of transport such as vehicles, airplanes, trains or ships if those vehicles, airplanes, trains or ships are ordinarily used to transport passengers or freight both in Québec and outside Québec.

Commercial advertising, signs and posters and firm names may appear exclusively in one or several languages other than French if placed on the inside or on the outside of any means of transport such as vehicles, airplanes, trains or ships if those vehicles, airplanes, trains or ships are ordinarily used to transport passengers or freight outside Québec.

6. Sections 205, 206, 207 and 208 provide the following sanctions for a contravention of the provisions of the Charter of the French Language or the Regulation respecting the language of commerce and business:

7. Every person who contravenes a provision of this act other than section 136 or of a regulation made under this act by the Government 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.

7. The provisions of the Quebec Charter of Human Rights and Freedoms relied on by the appellant in the Superior Court are ss. 3 and 10, which provide:

8. 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. 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.

8. In the Superior Court the appellant contended that the challenged provisions of the Charter of the French Language were ultra vires because they encroached on fundamental liberties beyond provincial legislative jurisdiction and invaded federal legislative jurisdiction with respect to the criminal law and the regulation of interprovincial trade and commerce. Dugas J. rejected these contentions and concluded that the regulation of the use of language to the extent reflected in the challenged provisions fell within provincial legislative jurisdiction. He also held that the challenged provisions did not infringe the freedom of expression guaranteed by s. 3 of the Quebec Charter. He was of the view that freedom of expression did not include the freedom to choose one's language of expression. In so far as s. 10 of the Quebec Charter is concerned, he held that while anglophones might be placed at a disadvantage by the challenged provisions of the Charter of the French Language the provisions applied without discrimination to all persons in Quebec and did not, therefore, infringe s. 10.

9. In dismissing the appeal from this judgment a majority in the Court of Appeal (Monet, Bisson and Chouinard JJ.A.) held that the challenged provisions of the Charter of the French Language fell within provincial legislative jurisdiction with respect to the regulation of commerce within the province. They rejected the appellant's contentions based on the "implied bill of rights" and on federal jurisdiction with respect to criminal law and interprovincial trade and commerce. They also held that the provisions did not infringe the guarantee against discrimination based on language in s. 10 of the Quebec Charter for reasons similar to those of Dugas J. The majority further held that the guarantee of freedom of expression in s. 3 of the Quebec Charter could not render the challenged provisions inoperative because at the time of the judgment in the Superior Court s. 3 did not, by operation of s. 52 of the Quebec Charter, have precedence over the provisions of the other Quebec statutes but only an interpretative effect. The minority (Montgomery and Paré JJ.A.) held that s. 58 (and ss. 59, 60 and 61, which were dependent on it) were ultra vires on the ground that while the requirement of the use of French in addition to any other language might serve a valid commercial purpose, the prohibition of the use of any language other than French did not. The minority did not find it necessary to consider the contentions based on ss. 3 and 10 of the Charter.

10. This Court cannot agree with the majority's conclusion concerning the precedence of s. 3 over the provisions of other Quebec statutes. As was decided in Ford v. Quebec (Attorney General), 1988 CanLII 19 (SCC), [1988] 2 S.C.R. 712, s. 52 gave s. 3 this precedence as of February 1, 1984. As Pigeon J. noted, discussing the application of amended statutes, in Cusson v. Robidoux, 1975 CanLII 199 (SCC), [1977] 1 S.C.R. 650, at p. 656, "a court of appeal must decide on the basis of the situation existing when it renders its judgment, and not necessarily on the basis of the situation that existed when the trial judge ruled." This is consistent with our ruling in Ford and no substantive difference arises out of the fact that that was a motion for declaratory judgment while the present case was instituted as an action in nullity. Professor Gerald Le Dain (as he then was) wrote, in what has become a classic article, "The Supervisory Jurisdiction in Quebec" (1957), 35 Can. Bar Rev. 788, at pp. 789 and 811, that "it may be permissible to regard the direct action in nullity as in essence a form of declaratory action" and that "[s]ince the judgment on a direct action [in nullity] always contains a declaration of ultra vires or nullity and deals with a case of absolute nullity, this recourse bears a strong resemblance to a declaratory action". Certainly in this case there is no substantive difference between a motion for declaratory judgment and a declaratory action which would cause this Court to come to a different conclusion than that reached in Ford, namely 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. That is the basis on which this case was argued before us and we will proceed by interpreting s. 3 of the Quebec Charter of Human Rights and Freedoms as having precedence over the provisions of other Quebec statutes, notably here the Charter of the French Language and its regulations.

11. In this Court the appellant was permitted to invoke the freedom of expression guaranteed by s. 2(b) of the Canadian Charter of Rights and Freedoms and the right to equality guaranteed by s. 15 of the Canadian Charter, together with the related question of the validity of the override provision in s. 214 of the Charter of the French Language, the Attorney General of Quebec having agreed with the appellant on the statement of the following constitutional questions by Lamer J. in his order of May 11, 1987:

12. To the extent that ss. 58 and 59 of the Charter of the French Language, R.S.Q., c. C‑11, prescribe the exclusive use of French, are the said sections within the legislative competence of Quebec?

13. To the extent that ss. 52 (formerly s. 53), 57, 60 and 61 of the Charter of the French Language, R.S.Q., c. C‑11, require the joint use of French, are the said sections within the legislative competence of Quebec?

14. Is section 214 of the Charter of the French Language, R.S.Q., c. C‑11, as brought into force by S.Q. 1982, c. 21, s. 1, inconsistent with s. 33(1) of the Constitution Act, 1982 and thereby to the extent of the inconsistency of no force or effect pursuant to s. 52(1) of the latter Act?

15. If the reply to question 3 is in the affirmative, are ss. 52 (formerly s. 53), 57, 58, 59, 60 and 61 of the Charter of the French Language, R.S.Q., c. C‑11, and the Regulation respecting the language of commerce and business, R.R.Q., c. C‑11, r. 9, inconsis­tent with the guarantees of freedom of expression and non‑discrimination provided in s. 2(b) and s. 15 of the Canadian Charter of Rights and Freedoms and if so in what particulars and to what extent?

16. If the reply to question 4 is in the affirmative in whole or in part, are the said sections of the Charter of the French Language and the said Regulation thereunder justified by the application of s. 1 of the Canadian Charter of Rights and Freedoms and thereby consistent with the Constitution Act, 1982?

17. In this Court the appellant continued to rely on the guarantee against discrimination based on language in s. 10 of the Quebec Charter of Human Rights and Freedoms as well as the guarantee of the right to equality in s. 15 of the Canadian Charter of Rights and Freedoms. The appellant did not rely on s. 15 of the Quebec Charter of Human Rights and Freedoms.

II

Whether the Challenged Provisions Are Ultra Vires the Quebec Legislature

13.

Whether the Challenged Provisions Are Ultra Vires the Quebec Legislature

The first question in the appeal is whether the challenged provisions of the Charter of the French Language are ultra vires the provincial legislature as being beyond provincial legislative authority under the Constitution Act, 1867. It will be noted that the first two constitutional questions distinguish in this respect between provisions requiring the "exclusive use of French" and provisions requiring the "joint use of French", as did the minority in the Court of Appeal.

14. It appears to have been accepted by all the members of the Court of Appeal, whether expressly or impliedly, that provincial legislative jurisdiction with respect to language is not an independent one but is rather "ancillary" to the exercise of jurisdiction with respect to some class of subject matter assigned to the province by s. 92 of the Constitution Act, 1867. That conclusion was based primarily on what was said by this Court in Jones v. Attorney General of New Brunswick, 1974 CanLII 164 (SCC), [1975] 2 S.C.R. 182, and on the opinion of Professor Hogg in Constitutional Law of Canada (2nd ed. 1985), at pp. 804‑806, which in turn is based on what was said in Jones. Since this Court agrees with that conclusion, substantially for the reasons given in the Court of Appeal in the judgments of Monet, Chouinard and Paré JJ.A., it would not serve a useful purpose to reproduce here the references to the authorities in support of that conclusion which are fully set out in their opinions, including a long extract from the opinion of Professor Hogg. We adopt the following passages of the opinion of Professor Hogg as a statement of the law on this question, i.e., that:

...language is not an independent matter of legislation (or constitutional value); that there is therefore no single plenary power to enact laws in relation to language; and that the power to enact a law affecting language is divided between the two levels of government by reference to criteria other than the impact of law upon language. On this basis, a law prescribing that a particular language or languages must or may be used in certain situations will be classified for constitutional purposes not as a law in relation to language, but as a law in relation to the institutions or activities that the provision covers.

...for constitutional purposes language is ancillary to the purpose for which it is used, and a language law is for constitutional purposes a law in relation to the institutions or activities to which the law applies.

In order to be valid, provincial legislation with respect to language must be truly in relation to an institution or activity that is otherwise within provincial legislative jurisdiction.

15. While agreeing with this premise as to the nature of provincial jurisdiction with respect to language, the members of the Court of Appeal differed, as indicated above, as to whether s. 58 of the Charter of the French Language, which requires that public signs and posters and commercial advertising shall be solely in French, is truly in relation to commerce within the province. It should be noted that in the Court of Appeal the appellant apparently did not, as he did in this Court, challenge provincial legislative jurisdiction to require the use of French without prohibiting the use of any other language (the "joint use" of French referred to in the second constitutional question). The majority in the Court of Appeal held that the challenged provisions were in relation to commerce within the province. The minority opinion, as expressed by Paré J.A., with whom Montgomery J.A. concurred in separate dissenting reasons, was that while the provisions requiring the "joint use" of French, to use the terms of the constitutional questions, could be said to be in relation to commerce within the province, those requiring the "exclusive use" of French could not. Paré J. based this distinction on the premise that in order to be in relation to commerce within the province a language provision must be calculated to favour such commerce or at least be of some remedial nature in relation to it. He reasoned that while the requirement of the "joint use" of French obviously conferred certain benefits on the francophone population in commercial dealings which would enure to the overall benefit of commerce within the province, the requirement of the exclusive use of French while perhaps conferring some advantage on francophones could not conceivably have any overall beneficial effect on commerce within the province. He concluded that the purpose of the requirement of the "exclusive use" of French was the purely ideological one, unrelated to commerce within the province, of enhancing the status of French.

16. On this issue we are in agreement with the majority in the Court of Appeal. It is true, as the preamble of the Charter of the French Language indicates, that one of its objects is "to make of French the language of ... commerce and business" but that object necessarily involves the regulation of an aspect of commerce and business within the province, whatever the nature of the effect of such regulation may be. The purpose and effect of the challenged provisions of Chapter VII of the Charter of the French Language entitled "The Language of Commerce and Business" is to regulate an aspect of the manner in which commerce and business in the province may be carried on and as such they are in relation to such commerce and business. That the overall object of the Charter of the French Language is the enhancement of the status of the French language in Quebec does not make the challenged provisions any less an intended regulation of an aspect of commerce within the province. As such, they fall within provincial legislative jurisdiction under the Constitution Act, 1867.

17. The appellant challenged the validity of both the "exclusive use" and the "joint use" provisions on the basis of the "spirit" or presumed intention concerning the future status of the French and English language arising from the Confederation Debates and the guarantees in s. 133 of the Constitution Act, 1867, and adopted the following statement concerning presumed intention by Montgomery J.A. at p. 74:

If there be any doubt in this matter, and in my mind there is none, I would look at the presumed intention of the Parliament of the United Kingdom in enacting the B.N.A. Act. I find it utterly inconceivable that [that] Parliament, sitting in England, had the slightest intention of giving to any province the right to ban under penalty the use of the English language, now one of the two official languages of Canada. I seriously question the right of any province to ban its use except under the most exceptional circumstances.

This is not, however, a sufficient basis for a denial of provincial jurisdiction. There are many consequences of the exercise of legislative jurisdiction about which one might make a similar assumption or speculation concerning the intention of the United Kingdom Parliament. The question is not whether a particular exercise of provincial jurisdiction with respect to language was intended but whether such a provincial jurisdiction was intended. Nor is there anything in the Confederation Debates or in the terms of s. 133 of the Constitution Act, 1867 that requires provincial legislative authority with respect to language to be construed as excluding either an "exclusive use" or "joint use" requirement.

18. The appellant made elaborate submissions in support of the contention that s. 58, as a prohibition with penal consequences of the use of any language other than French, was criminal law. The appellant referred to the many decisions of this Court, including its most recent judgment in Rio Hotel Ltd. v. New Brunswick (Liquor Licensing Board), 1987 CanLII 72 (SCC), [1987] 2 S.C.R. 59, which have considered the criteria for distinguishing between criminal law and provincial penal provisions in the exercise of a valid provincial regulatory jurisdiction. The essential premise underlying the contention that s. 58 is criminal law is that it is not sufficiently related to a provincial regulatory scheme to meet the test reflected in the cases. This is, in effect, the premise that has been rejected in holding that s. 58 and the other challenged provisions of the Charter of the French Language and the Regulation respecting the language of commerce and business constitute the regulation of an aspect of commerce within the province‑‑the linguistic basis on which certain commercial activity may be carried on. Section 58 cannot be viewed in isolation from the other provisions of the Charter of the French Language and the Regulation respecting the language of commerce and business. Together they constitute a regulatory scheme directed to certain aspects of commercial activity. The regulatory concern is avowedly the relationship between language status and such commercial activity but it is nevertheless a valid provincial regulatory purpose in relation to commerce within the province. This is not the prohibition of the use of language in and for itself as constituting conduct having affinity with some traditional criminal law concern such as morality or public order. We are therefore of the opinion that s. 58 of the Charter of the French Language is not ultra vires the provincial legislature as constituting criminal law.

19. Finally, with respect to the second constitutional question concerning the validity of the provisions requiring the "joint use" of French, the appellant submitted that these provisions by the burden they imposed on anglophones constituted an unconstitutional barrier to the mobility which is a protected feature of the Canadian Constitution, reflected in s. 121 of the Constitution Act, 1867, inhering in Canadian citizenship and now guaranteed by s. 6 of the Canadian Charter of Rights and Freedoms. In this Court's estimation that contention is without merit. Assuming for the sake of argument, but not deciding, that mobility is a protected value of the Canadian Constitution, the challenged provisions do not impose conditions which present an unacceptable obstacle to mobility. They are conditions with which anyone may comply, with the necessary professional assistance. They may impose additional burdens on persons considering doing business in the province, which may in some cases discourage such an initiative, but that may be true of other conditions imposed by valid legislation in a province. The challenged provisions are not designed to prevent people from entering the province. They are simply conditions of doing business in the province with which anyone may comply.

20. For these reasons this Court is of the opinion that the challenged provisions, whether they require the "exclusive use" or the "joint use" of French are intra vires the Legislature of Quebec, and the first two constitutional questions are accordingly answered in the affirmative.

III

Are Any or All of ss. 52 (Formerly s. 53), 57, 58, 59, 60, and 61 of the Charter of the French Language Protected From the Application of ss. 2(b) and 15 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?

21.

Application of the Override Provision

For the reasons given in Ford, ss. 52 (formerly s. 53) and 58 of the Charter of the French Language are protected from the application of ss. 2(b) and 15 of the Canadian Charter of Rights and Freedoms by a valid and subsisting override provision, enacted pursuant to s. 33 of the Canadian Charter, in the form of s. 52 of An Act to amend the Charter of the French Language, S.Q. 1983, c. 56. However, it was held in Ford that s. 58 infringes the guarantee of freedom of expression in s. 3 of the Quebec Charter of Human Rights and Freedoms, infringes the guarantee against discrimination based on language in s. 10 of the Quebec Charter, is not saved from its s. 3 infringement by considerations under s. 9.1, and is thus of no force or effect. In this case, s. 52 of the Charter of the French Language is subject to scrutiny only under ss. 3, 9.1 and 10 of the Quebec Charter.

22. Sections 57, 59, 60 and 61 of the Charter of the French Language and the Regulation respecting the language of commerce and business, which require the use of French but permit the use of another language at the same time, are no longer protected from the application of ss. 2(b) and 15 of the Canadian Charter of Rights and Freedoms by a valid and subsisting override provision enacted pursuant to s. 33 of the Canadian Charter, since s. 214 of the Charter of the French Language ceased to have effect on June 23, 1987. These provisions are, of course, also subject to ss. 3 and 10 of the Quebec Charter of Human Rights and Freedoms.

IV

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

23.

Freedom of Choice of Language

For the reasons given in Ford, the matters referred to in ss. 57, 59, 60 and 61 of the Charter of the French Language constitute expression within the meaning of s. 2(b) of the Canadian Charter of Rights and Freedoms, and the freedom of expression guaranteed by s. 2(b) includes the freedom to express oneself in the language of one's choice. This analysis applies equally to these sections and to s. 52 as concerns s. 3 of the Quebec Charter. That freedom is infringed not only by a prohibition of the use of one's language of choice but also by a legal requirement compelling one to use a particular language. As was said by Dickson J. (as he then was) in R. v. Big M Drug Mart Ltd., 1985 CanLII 69 (SCC), [1985] 1 S.C.R. 295, at p. 336, freedom consists in an absence of compulsion as well as an absence of restraint. This Court is thus of the view that ss. 57, 59, 60 and 61 of the Charter of the French Language, in so far as they compel the use of the French language, infringe the freedom of expression guaranteed by s. 2(b) of the Canadian Charter of Rights and Freedoms. These sections and s. 52 similarly infringe the freedom of expression guaranteed by s. 3 of the Quebec Charter.

V

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

24.

Reasonable Limits

It remains to be considered whether the limit imposed on freedom of expression by the challenged provisions of the Charter of the French Language, which require the use of French while at the same time permitting the use of another language, is justified under s. 1 of the Canadian Charter of Rights and Freedoms and s. 9.1 of the Quebec Charter. The section 1 and s. 9.1 materials submitted by the Attorney General of Quebec in justification of the challenged provisions were considered in Ford. For the reasons there stated, legislation requiring the exclusive as opposed to the predominant use of French is not justified under s. 1 or s. 9.1. Section 58 of the Charter of the French Language, as was shown in Ford, does require exclusive use of French and therefore does not survive s. 9.1 scrutiny. For the reasons given in that case the requirement of either joint or predominant use is justified under s. 9.1 and s. 1.

25. However, s. 58 cannot be struck down in isolation; if it is found ultra vires, so too are several of its companion provisions at issue in the instant case. Sections 59, 60 and 61 as well as ss. 8, 9, 12, 13, 14, 15, 16 and 19 of the Regulation respecting the language of commerce and business create exceptions to s. 58. By leaving these exceptions standing, exceptions which on their own would withstand s. 9.1 or s. 1 scrutiny, the Court would be effecting an inversion of legislative intention. Clearly the sections were enacted in order to provide some relief from the stringent requirement of exclusivity mandated by s. 58. Section 59 simply has no meaning independent of s. 58; it cannot be an explicit exception to a rule that no longer exists. The exception contained in s. 60 is of an implicit nature. It provides that firms employing fewer than four persons are exempted from the requirement of exclusive use of French found in s. 58. Section 60 further provides that the French language must be given "at least as prominent display" as any inscription in any other language. This requirement is even less demanding than what Quebec could impose consistent with the Court's reasons in Ford. But if the general rule, s. 58, is struck down while the exception, s. 60, is allowed to stand, firms employing fewer than four persons‑‑which had been subject to a less stringent regime than other firms‑‑would suddenly be subject to a more stringent regime. Such a reversal of legislative intent can only be avoided if this Court now renders s. 60 of no force or effect. Similarly, once s. 58 is struck down, s. 61 and ss. 8, 9, 12, 13, 14, 15, 16 and 19 of the Regulation respecting the language of commerce and business must be struck down as well. Furthermore, because s. 69 of the Charter of the French Language has been struck down in Ford, the exceptions to s. 69 prescribed by ss. 17 and 18 of the Regulation respecting the language of commerce and business are also struck down. Had the appellant contested the validity of s. 62, which also creates an exception to s. 58, it too would have been struck down.

26. To strike down both s. 58 and its exceptions is consistent with the reasons of Dickson C.J. in R. v. Morgentaler, 1988 CanLII 90 (SCC), [1988] 1 S.C.R. 30, at p. 80. Discussing the Criminal Code provisions respecting abortion which were struck down in that case, the Chief Justice noted that counsel for the Crown and for the Attorney General of Canada had both conceded that "the whole of s. 251 should fall if it infringed s. 7":

This was a wise approach, for in Morgentaler (1975), at p. 676, the Court held that "s. 251 contains a comprehensive code on the subject of abortions, unitary and complete within itself". Having found that this "comprehensive code" infringes the Charter, it is not the role of the Court to pick and choose among the various aspects of s. 251 so as effectively to re‑draft the section.

Although in the present case several sections are in issue, and not a single one as in Morgentaler, the same principle applies. A single scheme is being dealt with, and once the parent section which institutes that scheme has been found unconstitutional, the Court must proceed to strike down those exceptions which are necessarily connected to the general rule. In that way, distortions and inconsistencies of legislative intention do not result from finding the major component of a comprehensive legislative regime contrary to the Constitution.

27. The remaining sections, 52 and 57, if they are preserved, neither cause unintended results in the overall legislative scheme, nor conflict with s. 2(b) of the Canadian Charter or s. 3 of the Quebec Charter as interpreted in Ford. Their subsistence does not cause unintended results because they are not dependent on s. 58 for their meaning, as were ss. 59, 60 and 61. Similarly, their continued existence does not infringe either Charter because, while ss. 52 and 57 provide for the publication of such items as catalogues, brochures, order forms and invoices in French, they do not require the exclusive use of French. Section 89 makes it clear that where exclusive use of French is not explicitly required by the Act, the official language and another language may be used together. Following the reasons in Ford, permitting joint use passes the scrutiny required by s. 1 of the Canadian Charter and s. 9.1 of the Quebec Charter. The rational connection between protecting the French language and assuring that the reality of Quebec is communicated through the "visage linguistique" by requiring signs to be in French was there established. The same logic applies to communication through such items as brochures, catalogues, order forms and invoices, and the rational connection is again demonstrated. Sections 52 and 57 are therefore sustainable under s. 9.1 of the Quebec Charter, and s. 57‑‑the only one of the two subject to the Canadian Charter‑‑is sustainable thereunder by virtue of s. 1. It now remains to discuss whether ss. 52 and 57 are contrary to s. 10 of the Quebec Charter, and whether s. 57 is contrary to ss. 15 and 1 of the Canadian Charter.

VI

Do the Challenged Provisions 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 or, Where Applicable, the Guarantee of Equality in s. 15 of the Canadian Charter of Human Rights and Freedoms?

28.

Discrimination and Equality

As was emphasized in Ford, to determine 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. If the distinction is based on a prohibited ground, it will only constitute discrimination within the meaning of s. 10 if it 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 of Human Rights and Freedoms.

29. The provisions at issue, ss. 52 and 57, on their face apply to everyone regardless of language of use. While their effect is less severe than the requirement of the exclusive use of French under s. 58, they nevertheless impinge differentially on different classes of persons according to their language of use. Francophones are not required to use any language other than their language of use while anglophones and other non‑francophones are required to use French, although they may also use another language. This creates a distinction between such persons based on language of use, which is a prohibited ground under s. 10 of the Quebec Charter.

30. Does this distinction have 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? As in Ford, the human right or freedom in issue in this case is freedom of expression guaranteed by s. 3 of the Quebec Charter. In Ford it was found that the right guaranteed by s. 3 extended to protect the freedom to express oneself in the language of one's choice; in this case, however, we have found that s. 3 does not extend to guarantee a right to express oneself exclusively in one's own language. This result was reached by operation of s. 9.1, which does not limit the application of s. 10 but does limit the application of s. 3. Dean François Che­vrette, in his article discussing the operation of s. 9.1, "La disposition limitative de la Charte des droits et libertés de la personne: le dit et le non‑dit" (1987), 21 R.J.T. 461, at p. 470, has clarified the relationship among ss. 1 through 9, 9.1 and 10 to the same effect:

[TRANSLATION] One final, delicate question remains. By guaranteeing the equal recognition and exercise of rights and freedoms‑‑in particular the rights and freedoms enshrined in ss. 1 to 9‑‑is s. 10 of the Charter itself subject to s. 9.1, especially given that the latter section is arguably incorporated by reference into ss. 1 to 9? In my view, the answer to this question should be no. Doubtless the rights and freedoms protected under ss. 1 to 9 can ultimately be limited by virtue of s. 9.1‑‑this despite the guarantee of their full and equal exercise provided by s. 10. But the limiting clause does not apply to the principle of equality itself. To conclude otherwise would be to broaden the well‑defined scope of s. 9.1.

While it is true that s. 9.1 does not apply to the principle of equality enshrined in s. 10, it does apply to the guarantee of free expression enshrined in s. 3. Whenever it is alleged that a distinction on a ground prohibited by s. 10 has the effect of impairing or nullifying a right under s. 3, the scope of s. 3 must still be determined in light of s. 9.1. Where, as here, s. 9.1 operates to limit the scope of freedom of expression guaranteed under s. 3, s. 10 cannot be invoked to circumvent those reasonable limits and to substitute an absolute guarantee of free expression. On the other hand, having specified the scope of free expression, s. 9.1 cannot be invoked to justify a limit upon equal recognition and exercise of the right guaranteed by s. 3. Here, sections 52 and 57 do create a distinction based on language of use but do not have the effect of impairing or nullifying rights guaranteed under s. 3. They thus conform to the Quebec Charter. This result is consistent with the reasons of the majority, written by Lamer J., in a recent judgment of this Court, Forget v. Quebec (Attorney General), 1988 CanLII 51 (SCC), [1988] 2 S.C.R. 90. That case concerned the application of certain provisions of the Charter of the French Language and the regulations thereunder which required an appropriate knowledge of French for entry into a professional corporation and provided non‑francophones with a means of establishing that they met the requirement by, inter alia, taking a French proficiency test. Although Lamer J. found that the testing procedure had a differential effect on non‑francophones and therefore created a distinction based on language of use, he also found that the distinction in no way impaired the right, enshrined in s. 17 of the Quebec Charter, to be admitted to a professional corporation without discrimination. The right guaranteed by s. 17 necessarily contemplated reasonable admission criteria, including French language proficiency and reasonable measures designed to ensure that candidates for admission were proficient. In coming to this conclusion, Lamer J. did not import s. 9.1 into s. 10. Rather, having found a distinction on a ground prohibited by s. 10, he asked whether the distinction impaired the right guaranteed under s. 17 and came to the conclusion that it did not given the scope of the right to be admitted to a professional corporation without discrimination.

31. This leaves the question as to whether s. 57 is contrary to ss. 15 and 1 of the Canadian Charter. Section 15 of the Canadian Charter was invoked by the appellant only before this Court, although the Attorney General of Quebec did agree that constitutional questions be stated and that s. 15 should be in issue. Nevertheless, we do not have the benefit of reasons from the Court of Appeal or from the Superior Court interpreting the application of s. 15 to s. 57. Nor has this Court yet rendered any judgment interpreting the meaning of s. 15. It is not necessary in this case to discuss whether s. 57 is prima facie in breach of s. 15. We have already determined that it is prima facie in breach of s. 2(b). The only question that remains to be answered is whether the application of s. 1 would be any different if there were a prima facie breach of s. 15 in this case. More specifically, the question becomes whether the proportionality test laid down in R. v. Oakes, 1986 CanLII 46 (SCC), [1986] 1 S.C.R. 103, and restated by Dickson C.J. in R. v. Edwards Books and Art Ltd., 1986 CanLII 12 (SCC), [1986] 2 S.C.R. 713, would yield a different result in this case if the prima facie breach in issue were a breach of the rights guaranteed under s. 15. We have already determined that the requirement of joint use of French is rationally connected to the legislature's pressing and substantial concern to ensure that the "visage linguistique" of Quebec reflects the predominance of the French language. Does this requirement impair as little as possible the right to equality before and under the law and the right to equal protection and benefit of the law without discrimination? Is it designed not to trench on that right so severely that the legislative objective is nevertheless outweighed by the abridgment of rights? By ensuring that non‑francophones can draw up application forms for employment, order forms, invoices, receipts and quittances in any language of their choice along with French, s. 57, read together with s. 89, creates, at most, a minimal impairment of equality rights. Although, as the appellant contended, the requirement of joint use of French might create an additional burden for non‑francophone merchants and shopkeepers, there is nothing which impairs their ability to use another language equally. Thus, the conclusion we have reached with respect to the operation of s. 1 stands even if the prima facie breach of the Canadian Charter at issue is a breach of s. 15.

32. As it is our view that the equality guarantees in s. 15 of the Canadian Charter and s. 10 of the Quebec Charter were not infringed, it is unnecessary in this case to decide whether corporations are entitled to the direct benefit of these protections. It is further unnecessary to decide whether the appellant corporation was entitled to challenge s. 57 as inconsistent with s. 15 of the Canadian Charter.

VII

Answers to the Constitutional Questions and Disposition of Appeal

33.

Answers to the Constitutional Questions and Disposition of Appeal

For these reasons the appeal is allowed in part and the constitutional questions are answered as follows:

1. To the extent that ss. 58 and 59 of the Charter of the French Language, R.S.Q., c. C‑11, prescribe the exclusive use of French, are the said sections within the legislative competence of Quebec?

Answer: Yes.

2. To the extent that ss. 52 (formerly s. 53), 57, 60 and 61 of the Charter of the French Language, R.S.Q., c. C‑11, require the joint use of French, are the said sections within the legislative competence of Quebec?

Answer: Yes.

3. Is section 214 of the Charter of the French Language, R.S.Q., c. C‑11, as brought into force by S.Q. 1982, c. 21, s. 1, inconsistent with s. 33(1) of the Constitution Act, 1982 and thereby to the extent of the inconsistency of no force or effect pursuant to s. 52(1) of the latter Act?

Answer: Yes, but only to the extent that s. 214 is given retrospective effect by s. 7 of the Act respecting the Constitution Act, 1982, S.Q. 1982, c. 21.

4. If the reply to question 3 is in the affirmative, are ss. 52 (formerly s. 53), 57, 58, 59, 60 and 61 of the Charter of the French Language, R.S.Q., c. C‑11, and the Regulation respecting the language of commerce and business, R.R.Q., c. C‑11, r. 9, inconsis­tent with the guarantees of freedom of expression and non‑discrimination provided in s. 2(b) and s. 15 of the Canadian Charter of Rights and Freedoms and if so in what particulars and to what extent?

Answer: In so far as s. 52 of An Act to Amend the Charter of the French Language remains in effect, ss. 52 (formerly s. 53) and 58 of the Charter of the French Language are protected from the application of s. 2(b) and s. 15 of the Canadian Charter of Rights and Freedoms. However, s. 58 is inconsistent with the guarantees of freedom of expression and non‑discrimination provided in ss. 3 and 10 of the Quebec Charter of Human Rights and Freedoms. Section 52 of the Charter of the French Language infringes s. 3 but not s. 10 of the Quebec Charter. In so far as s. 214 of the Charter of the French Language has ceased to have effect, ss. 57, 59, 60 and 61 thereof as well as the Regulation respecting the language of commerce and business are subject to s. 2(b) and s. 15 of the Canadian Charter of Rights and Freedoms. Sections 57, 59, 60 and 61 as well as the Regulation are also subject to ss. 3 and 10 of the Quebec Charter. Sections 59, 60 and 61 as well as ss. 8, 9, and 12 to 19 of the Regulation are inconsistent with the guarantee of freedom of expression in the Canadian and Quebec Charters and non‑discrimination in the Quebec Charter. Section 57 infringes s. 2(b) of the Canadian Charter and s. 3 but not s. 10 of the Quebec Charter. Because ss. 57, 59, 60 and 61 infringe s. 2(b) of the Canadian Charter, it is unnecessary to decide whether they also infringe s. 15 of the Canadian Charter.

5. If the reply to question 4 is in the affirmative in whole or in part, are the said sections of the Charter of the French Language and the said Regulation thereunder justified by the application of s. 1 of the Canadian Charter of Rights and Freedoms and thereby consistent with the Constitution Act, 1982?

Answer: Sections 58, 59, 60 and 61 as well as ss. 8, 9 and 12 to 19 of the Regulation are not justified under s. 9.1 of the Quebec Charter. Nor are ss. 59, 60 and 61 or ss. 8, 9 and 12 to 19 of the Regulation justified under the Canadian Charter. Sections 52 and 57 are justified under s. 9.1 of the Quebec Charter. Section 57 is also justified under s. 1 of the Canadian Charter.

34. Since the appellant's success in this Court is divided, we would allow the appellant only one half of its costs upon this appeal.

Appeal allowed in part.

Solicitor for the appellant: Joseph Eliot Magnet, Ottawa.

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

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 New Brunswick: Gordon F. Gregory, Fredericton.

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

^*^ Estey and Le Dain JJ. took no part in the judgment.