SCcu

Quebec’s language laws provide that in commercial advertising, the French language must be “markedly predominant” over all other languages combined. In Web sites, the French language is imposed and other languages may be of equal size. This case is about the constitutionality of those laws.

The small business owners involved were charged with offences under Chapter VII of the Charter of the French Language (“CFL”) entitled “The language of commerce and business” resulting in a trial grouping together 84 cases. During trial, the Attorney General of Quebec withdrew the charges in 53 cases. In the 31 remaining cases, by judgment dated January 28, 2015, the trial judge, Justice Salvatore Mascia of the Court of Quebec, dismissed the defendants’ common law arguments and constitutional arguments and found them guilty. 11 of the defendants in 13 cases appealed and by judgment dated April 12, 2016, Justice Claudine Roy of the Superior Court dismissed the appeal. The same 11 defendants appealed and by judgment dated December 20, 2017, the Court of Appeal dismissed the appeal.

After having lost all the way up, the defendants have filed an Application for leave to appeal to the Supreme Court of Canada. The issue in the appeal, broadly stated, is whether the charging provisions infringe the right to freedom of expression, the right to equality, which includes the right not to be discriminated against on the basis of language, the right to liberty under the Canadian Charter of Rights and Freedoms , and the Quebec Charter of Human Rights and Freedoms and the right of enjoyment of private property under the Quebec Charter.

The CFL became law in 1977 after the passing of Bill 101 and has been amended more than six times since 1977. Despite the controversies generated by this law, it has received limited judicial attention and the Court of Appeal below relied on three decisions to dismiss the case:
Ford v. Quebec (Attorney General);
Devine v. Quebec (Attorney General); and
Entreprises W.F.H. Ltée c. Québec (Procureure générale) which relies on the guidelines stated in an obiter dictum in Ford.

Much has changed since Ford and Devine and yet, as is seen in the present case, courts continue to rely on an undocumented “vulnerability” of the French language to justify the infringement of Charter rights by language laws. The Supreme Court has considered this sentimental “vulnerability” argument in two more recent decisions in the context of s. 23 of the CFL and minority language instruction:
Solski (Tutor of) v. Quebec (Attorney General)
Nguyen v. Quebec (Education, Recreation and Sports).

In both cases, the evidence of the alleged vulnerability of the French language did not prevent the Supreme Court from finding that the impugned provisions were constitutionally suspect, giving rise to the remedy of “reading down” in Solski and a declaration of invalidity in Nguyen. Is it the case that the situation of the French language can be viewed differently depending on the nature of the right involved, or is it simply a matter of fact that can be demonstrated by concrete evidence?

As in Solski and Nguyen, the Appellants in the present case have filed abundant statistical and demographic evidence. Following the principles laid down by the Supreme Court in Canada (Attorney General) v. Bedford and Carter v. Canada (Attorney General) , the Appellants have met the burden of showing 1) a new legal issue or 2) a change in the circumstances or evidence that “fundamentally shifts the parameters of the debate”. Accordingly, this case raises an issue public importance and provides an ideal record for the consideration of fundamental constitutional issues.

Furthermore, as the manner in which businesses advertise to customers continues to evolve and geographical barriers disappear, only more questions will be raised as to what constitutes a violation of freedom of expression and the right to equality and liberty. For example, the Court of Appeal below confirmed that websites are subject to the same requirements as any other commercial publications paving the way for a significant burden on small business owners.

Since the “vulnerability” of the French language was the primary reason for justifying the infringement of Charter rights by language laws, the impugned provisions are constitutionally suspect. In light of Bedford and Carter and the need to be responsive to a changing social context, it now the time to revisit the language law precedents relied upon by the Court of Appeal.

In Ford the Supreme Court presented a disjunctive choice in the context of outside signs: favour the joint display of French, or the predominant display of French. The question raised by this appeal is whether the predominant display of French continues to be necessary – particularly in Montreal. Ignoring modern social realities, the decisions below impose predominant display under circumstances in which the “visage linguistique” does not require and should not require departure from joint display.

Part of the problem stems from the absence of clear guidance from the Supreme Court as to what is meant by “visage linguistique”. What are the parameters of this concept? Answering this and other fundamental questions will assist future Courts and the Legislature come to a stable resolution of this ongoing problem. As confirmed by the Court of Appeal, websites (and presumably all forms of social media) are subject to the same requirements as other traditional commercial advertising and publications. The internet was in its infancy at the time of the precedents relied upon by the courts below and social media was non-existent.

These technological advancements coupled with the Appellants’ evidence as to the admitted progress of the French language in recent decades is sufficient to satisfy the requirement of a change in circumstances or evidence that fundamentally shifts the parameters of the debate.

The 84 cases that were considered at first instance in this proceeding are simply the tip of the iceberg and a small indication of the burdens these language laws impose on business owners. Clarifying the law now will avoid further litigation and bring certainty to issues that are of public importance to all (whether in person or online) considered to be conducting or promoting business in the territory of Quebec.