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CANADIAN CHARTER OF RIGHTS AND FREEDOMS - Fundamental freedoms - Freedom of thought, belief, opinion and expression - Freedom of expression

Thursday, February 08, 2018 @ 8:45 AM  


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Appeal by 156158 Canada inc. and other Anglophone businesses from a decision dismissing an appeal of a decision finding them guilty of having violated the Charter of the French Language (CFL) and its regulations. At trial, the appellants argued that ss. 51, 52 and 58 of the CFL, which required French prominence in packaging, commercial advertising and public signs, infringed upon their fundamental rights and freedoms as guaranteed by both the Canadian Charter of Rights and Freedoms (Canadian Charter) and the Quebec Charter of Human Rights and Freedoms (Quebec Charter). More specifically, they alleged a violation of their freedom of expression, as well as their right to equality and liberty. Appellants attempted to justify their Charter challenges on the premise that the French language in Quebec was no longer in jeopardy. Hence, the factual underpinnings of the Supreme Court of Canada cases Ford and Devine could no longer be used to justify the infringement of Charter rights. The trial judge rejected the appellants' Charter arguments, as did the Superior Court.

HELD: Appeal dismissed. The judge correctly underlined the requirement that the proof necessary to depart from precedent be "solid, compelling and unequivocal" that the French language was no longer vulnerable. No significant change justifying a departure from Ford and Devine was demonstrated. There was no error in that conclusion, which was essentially factual. The post-Ford version of s. 58 CFL provided that French be markedly predominant when used with another language in commercial advertising and public signs. The regulations required that French texts be twice as large as the text of any other language. This accorded with the second alternative proposed by the Supreme Court in Ford. The markedly predominant requirement satisfied the Oakes test. The infringement of freedom of expression was provided by law and thus permitted by s. 1 of the Canadian Charter and s. 9.1 of the Quebec Charter. The requirement that merchants publicize their business in French in addition to English was not a constraint on their liberty protected by the Canadian Charter. The impugned provisions did not affect the appellants' right to peaceful enjoyment of private property.

156158 Canada inc. v. Attorney General of Quebec, [2017] Q.J. No. 17996, Quebec Court of Appeal, N. Duval Hesler C.J.Q., G. Marcotte J.A. and M. Schrager J.A., December 20, 2017. Digest No. TLD-Feb52018008