Devine v. Quebec (Attorney General)

Devine v. Quebec (Attorney General)
Collection
Supreme Court Judgments
Date
1988-12-15
Report
[1988] 2 SCR 790
Case number
20297
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
Notes
SCC Case Information: 20297
Decision Content
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] 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] 2 S.C.R. 712; Cusson v. Robidoux, [1977] 1 S.C.R. 650; Forget v. Quebec (Attorney General), [1988] 2 S.C.R. 90; referred to: Jones v. Attorney General of New Brunswick, [1975] 2 S.C.R. 182; Rio Hotel Ltd. v. New Brunswick (Liquor Licensing Board), [1987] 2 S.C.R. 59; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; R. v. Morgentaler, [1988] 1 S.C.R. 30; R. v. Oakes, [1986] 1 S.C.R. 103; R. v. Edwards Books and Art Ltd., [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, [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. 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.
2. 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), [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. 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:
1. French is the official language of Québec.
52. Catalogues, brochures, folders and any similar publications must be drawn up in French.
57. Application forms for employment, order forms, invoices, receipts and quittances shall be drawn up in French.
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.
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.
5. 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:
8. 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:
205. 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:
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.
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.
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] 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, [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:
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?
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?
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?
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?
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 ?
12. 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. 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, [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