Ford v. Quebec (Attorney General)

Ford v. Quebec (Attorney General)
Collection
Supreme Court Judgments
Date
1988-12-15
Report
[1988] 2 SCR 712
Case number
20306
Judges
Dickson, Robert George Brian; Beetz, Jean; McIntyre, William Rogers; Lamer, Antonio; Wilson, Bertha; Le Dain, Gerald Eric
On appeal from
Quebec
Subjects
Constitutional law
Statutes
Notes
SCC Case Information: 20306
Decision Content
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.