Ford v. Quebec (Attorney General)

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"

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"

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

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"

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"

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.

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

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

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.

The sanction of this Act is valid for each of the Acts enacted under section 1 or 2.

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.

Section 1 of An Act respecting the Constitution Act, 1982 enacted s. 214 of the Charter of the French Language, which provides:

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.

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.

Sections 51 and 52 of the Quebec Charter of Human Rights and Freedoms, R.S.Q., c. C‑12, provide:

Section 58 of the said Charter is replaced by the following section:

(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).

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.

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.

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

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

Section 33 of the Canadian Charter of Rights and Freedoms provides:

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.

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.

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.

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:

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.

Subject to section 68, only the French version of a firm name may be used in Québec.

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

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.

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.

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.

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

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.

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).

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: