Chapter 8: Quebec

Quebec – Main Language Laws

Charter of the French Language, CQLR c C-11

Preamble

WHEREAS the French language, the distinctive language of a people that is in the majority French-speaking, is the instrument by which that people has articulated its identity;

Whereas the National Assembly of Québec recognizes that Quebecers wish to see the quality and influence of the French language assured, and is resolved therefore to make of French the language of Government and the Law, as well as the normal and everyday language of work, instruction, communication, commerce and business;

Whereas the National Assembly intends to pursue this objective in a spirit of fairness and open-mindedness, respectful of the institutions of the English-speaking community of Québec, and respectful of the ethnic minorities, whose valuable contribution to the development of Québec it readily acknowledges;

Whereas the National Assembly of Québec recognizes the right of the Amerinds and the Inuit of Québec, the first inhabitants of this land, to preserve and develop their original language and culture;

Whereas these observations and intentions are in keeping with a new perception of the worth of national cultures in all parts of the earth, and of the obligation of every people to contribute in its special way to the international community;

Therefore, Her Majesty, with the advice and consent of the National Assembly of Québec, enacts as follows:

Annotations – General

Ford v. Québec (Attorney General), [1988] 2 SCR 712, 1988 CanLII 19 (SCC)

[40] […] 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, as the preamble of the Charter of the French Language itself indicates, a means by which a people may express its cultural identity. It is also the means by which the individual expresses his or her personal identity and sense of individuality. That the concept of "expression" in s. 2(b) of the Canadian Charter and s. 3 of the Quebec Charter goes beyond mere content is indicated by the specific protection accorded to "freedom of thought, belief [and] opinion" in s. 2 and to "freedom of conscience" and "freedom of opinion" in s. 3. That suggests that "freedom of expression" is intended to extend to more than the content of expression in its narrow sense.

[…]

[42] […] As one of the authorities on language quoted by the appellant Singer in the Devine appeal, J. Fishman, The Sociology of Language (1972), at p. 4, puts it: ". . . language is not merely a means of interpersonal communication and influence. It is not merely a carrier of content, whether latent or manifest. Language itself is content, a reference for loyalties and animosities, an indicator of social statuses and personal relationships, a marker of situations and topics as well as of the societal goals and the large-scale value-laden arenas of interaction that typify every speech community." As has been noted this quality or characteristic of language is acknowledged by the Charter of the French Language itself where, in the first paragraph of its preamble, it states: "Whereas the French language, the distinctive language of a people that is in the majority French-speaking, is the instrument by which that people has articulated its identity."

156158 Canada inc. c. Attorney General of Quebec , 2017 QCCA 2055 (CanLII)

[113] The Appellants’ submissions on this issue must be rejected for the following reasons. First, when the Quebec government adopted the C.F.L. in 1977, it did so in response to its assessment of the vulnerable state of the French language in Quebec. This legislation does not aim to promote the multilingual image of Montreal, or, for that matter, “the multicultural heritage of Canadians”, as does s. 27 of the Canadian Charter. Rather, it aims “to see the quality and influence of the French language assured” in Quebec. The fact that the “visage linguistique” of Quebec now accurately reflects the predominance of French in Quebec indicates that the C.F.L. has met this objective.

N.B. – An application for leave to appeal has been filed with the Supreme Court of Canada

Title I – Status of the French Language

Chapter I – The Official Language of Québec

1. French is the official language of Québec.

1977, c. 5, s. 1.

Annotations

S.C.F.P. v. Centre d'accueil Miriam, 1984 CarswellQue 351, [1984] C.A. 104, 26 A.C.W.S. (2d) 289, J.E. 84-307 (QC CA) [hyperlink not available] [judgment available in French only]

[OUR TRANSLATION]

[34] In my opinion, the legislator never intended to impose the exclusive use of French in individual communications between employer and employee, whether it was written or oral communications.

[35] No one would dare to argue that by making French the official language of Quebec (section 1 of the Charter [of the French language]) the legislator intended to impose French on everyone in all human interactions. The preamble of the law repels this idea. The word 'official' has only a relative meaning here.

[36] With regard to the language of work, section 1 should be read in the light of the preamble which states that the National Assembly is determined to make French the normal and usual language of work.

[37] These words 'normal and habitual language' do not convey the idea of exclusivity. On the contrary, they show that the legislator is aware that the official language cannot, in principle and in practice, be imposed in an absolute manner. That is why, in order to ensure the quality and the influence of the French language as the distinctive language of the francophone majority, not only does the law aim to make French the normal and habitual language of work, but also the National Assembly intends to pursue this objective in a climate of justice and openness towards ethnic minorities.

[38] In my opinion, the preamble clearly declares the intention of the legislator. Any need for interpretation must be resolved according to the spirit that the preamble brings to the law.

[39] In pursuit of the objectives contemplated in the preamble, the complexity of human relations required the legislator to take into account certain realities.

[40] This is why, it first, it adopted a set of provisions designed to protect those who speak the official language and who make up the majority of the population.

Droit de la famille — 171399 , 2017 QCCS 2697 (CanLII) [judgment available in French only]

[OUR TRANSLATION]

[1] In the context of a divorce case, the Tribunal has before it a request from Company A, the third-party ([Company A]), to be relieved of the failure to report, under subsection 717 (2) C.C.P. [Code of Civil Procedure].

[...]

[20] [Company A] insists that the use of the French language for writing the writ of seizure is a decisive factor in the manner in which it deals with this order of the Court.

[21] The Charter of the French language, at it section 1, states that French is the official language of Quebec.

[22] In the case at bar, the plaintiff was perfectly entitled to use the French language in her proceedings without any reproach to her subsequently, and even less so to disregard the order of the Tribunal.

Chapter II – Fundamental Language Rights

2. Every person has a right to have the civil administration, the health services and social services, the public utility enterprises, the professional orders, the associations of employees and all enterprises doing business in Québec communicate with him in French.

1977, c. 5, s. 2; 1994, c. 40, s. 457; 1999, c. 40, s. 45.

3. In deliberative assembly, every person has a right to speak in French.

1977, c. 5, s. 3.

4. Workers have a right to carry on their activities in French.

1977, c. 5, s. 4.

5. Consumers of goods and services have a right to be informed and served in French.

1977, c. 5, s. 5.

Annotations

Directeur des poursuites criminelles et pénales v. Italmélodie inc., 2010 QCCQ 5148 (CanLII) [judgment available in French only]

[OUR TRANSLATION]

[1] Is the inscription of the word "tuner" in French on the packaging of a product sufficient to respect the Charter of the French language? That is the question asked in this case.

[2] The defendant is accused of having put a product (a "Boss" chromatic tuner) on the market whose inscription on the product, on its container or on its wrapping, or on a document or object supplied with it, including the directions for use and the warranty certificates, are drafted in a language other than French.

[…]

[15] The primary purpose of the legislative provisions concerning the use of the French language is set out in s. 5 of the Charter of the French Language: […]

[16] Similarly, the Interpretation Act (Q.L.R., ch. 1-16) contains certain provisions relating to the protection of the French language:

40. The preamble of every statute shall form part thereof, and assist in explaining its purport and object.

In case of doubt, the construction placed on any Act shall be such as not to impinge on the status of the French language.

41. Every provision of an Act is deemed to be enacted for the recognition of rights, the imposition of obligations or the furtherance of the exercise of rights, or for the remedying of some injustice or the securing of some benefit.

Such statute shall receive such fair, large and liberal construction as will ensure the attainment of its object and the carrying out of its provisions, according to their true intent, meaning and spirit.

[17] Professor Côté also highlights the special status of the Charter of the French Language:

[TRANSLATION] In Quebec law, the Charter of the French Language can also be mentioned as a fundamental law. The Quebec legislator, in section 40 of the Interpretation Act, has enacted that “[i]n case of doubt, the construction placed on any Act shall be such as not to impinge on the status of the French language”.

[18] As the Honorable Justice Gonthier pointed out in Ontario v. C.P. speaking on the interpretation of a legislative text by a court:

In particular, a deferential approach should be taken in relation to legislative enactments with legitimate social policy objectives, in order to avoid impeding the state's ability to pursue and promote those objectives.

[19] In this case, the documentary evidence, as well as the packaging filed by the defendant (D-1), clearly demonstrate that the majority of the inscriptions on this product are in a language other than French. In fact, on the packaging, the only French word "tuner" appears in small characters on the sides of the package, among four other words meaning "tuner" in different languages. Regarding the documents inside the package, although there are instructions written in French, other documents do not include a French translation.

[20] Since the defendant has shown no diligence in correcting the situation, despite the warning and the notice of default, there is no doubt that it is guilty of the offence with which it is charged.

Québec (Procureur général) v. 9074-3527 Québec inc., 2006 QCCQ 7174 (CanLII) [judgment available in French only]

[OUR TRANSLATION]

[1] The defendant, 9074-3527 Québec Inc. is accused of committing the following offence:

[translation]

On or around October 26, 2004, in Montréal, at 4200 St-Laurent Blvd., Suite 1470 (Nightlife MAGAZINE) presented commercial advertising in a language other than French, thereby violating sections 58 and 205 of the Charter of the French Language.”

[2] The defendant is a duly incorporated company. It is responsible for the publication and distribution of the Nightlife Magazine. This magazine is a periodical whose primary mission is to promote the local music scene. Nightlife is distributed free of charge to fashion boutiques, nightclubs and other places frequented by the magazine’s target audience. This magazine is written primarily in French (about 70% of its content) but also contains articles written in English (about 30%). Since Nightlife is distributed free of charge, the revenue which the defendant derives from it comes from commercial advertising.

[…]

[33] It cannot be claimed, as the defendant contends, that since roughly 30% of the content of Nightlife is in English, Nightlife should have the right to feature roughly 30% of advertisements in English only. This would mean accepting that Francophone readers would be deprived of 30% of consumer information. Section 59 exists for news media publishing or broadcasting in a language other than French (e.g., The Gazette newspaper, radio stations broadcasting in English, etc.). The purpose of this section is obviously to exempt these news media from publishing or broadcasting their advertisements in French. Nightlife magazine is not a magazine that publishes information in a language other than French. Instead, it is a magazine that publishes information primarily in French (70%) and to a lesser extent, in English. In such a case, section 58 stipulates that commercial advertising can be done in both French and another language, as long as the French in it is markedly predominant.

[34] The predominance in this context cannot be a question of a percentage. At the risk of repeating myself, accepting that a percentage of the commercial advertising inside a periodical primarily targeting a Francophone clientele could be featured in a language other than French, means accepting that the objective stated in section 5 of the Charter of the French Language cannot be achieved.

6. Every person eligible for instruction in Québec has a right to receive that instruction in French.

1977, c. 5, s. 6.

Chapter III – The Language of the Legislature and the Courts

7. French is the language of the legislature and the courts in Québec, subject to the following:

(1) legislative bills shall be printed, published, passed and assented to in French and in English, and the statutes shall be printed and published in both languages;

(2) the regulations and other similar acts to which section 133 of the Constitution Act, 1867 applies shall be made, passed or issued, and printed and published in French and in English;

(3) the French and English versions of the texts referred to in paragraphs 1 and 2 are equally authoritative;

(4) either French or English may be used by any person in, or in any pleading in or process issuing from, any court of Québec.

1977, c. 5, s. 7; 1993, c. 40, s. 1.

Annotations

Doré v. Verdun (City), [1997] 2 SCR 862, 1997 CanLII 315 (SCC)

[23] The appellant argued at length in this Court that by using the term “stipulation”, which has an exclusively contractual connotation, in the English version rather than the term “provision”, which generally has a legislative connotation, the legislature’s intention was to limit the article’s scope to contractual exclusions. Since the term “disposition” used in the French version of art. 2930 C.C.Q. can have either a legislative or a contractual connotation, the appellant is relying on an interpretation principle applicable to bilingual statutes, namely that they should be interpreted by finding the meaning shared by both versions, that is “the more narrow of the two” meanings (P.-A. Côté, The Interpretation of Legislation in Canada (2^nd ed. 1991), at p. 276).

[24] This argument was rejected by Baudouin J.A. in the judgment under appeal, partly on the basis that the English version of the Civil Code is [translation] “merely a translation of the original French version” (p. 1327). With respect, although what he stated is unfortunately true, it cannot be used to reject the argument made by the appellant. Section 7 of the Charter of the French language, R.S.Q., c. C‑11, provides that the French and English versions of Quebec statutes “are equally authoritative”. This is in accordance with s. 133 of the Constitution Act, 1867 which requires that the statutes of the legislature of Quebec be enacted in both official languages and that both versions be equally authoritative and have the same status (see: Attorney General of Quebec v. Blaikie, 1979 CanLII 21 (SCC), [1979] 2 SCR 1016; Reference re Manitoba Language Rights, 1985 CanLII 33 (SCC), [1985] 1 SCR 721).

Blaikie v. Quebec (Attorney General), [1979] 2 SCR 1016, 1979 CanLII 21 (SCC)

[Page 1027-1028] The generality of s. 7, "French is the language of the legislature and the courts in Quebec" sweeps in the particulars spelled out in the succeeding ss. 8 to 13. It encompasses in its few and direct words what the succeeding sections say by way of detail. Indeed, as already pointed out, Chapter III of Title I, and especially s. 7 thereof, is a particular projection of Title I, Chapter I of the Charter of the French language, saying that "French is the official language of Quebec". Although as a matter of construction, the particular in a statute may modify or limit the general, nothing in ss. 8 to 13 indicates any modification or limitation of s. 7. If anything, there is an extension of the term "Courts" as it appears in s. 7 to include "bodies discharging judicial or quasi-judicial functions": see ss. 11 and 12. In s. 13, the reference is to "judgments ... by courts and by bodies discharging judicial or quasi-judicial functions" in making only the French text of such judgments official. Again, this appears to envisage an enlarged appreciation of the meaning of "Courts of Quebec", as that term appears in s. 133.

Amyot v. Autorité des marchés financiers (AMF), 2016 QCCQ 12492 (CanLII)

[7] May the petitioners claim for the trial to be held in English only?

[8] The petitioners quote, among other things, Beaulac, Cross and Musasizi to support their request.

[9] These criminal cases deal with the interpretation of section 530 and/or 530.1 of the Criminal code but the present charges are brought under the Securities Act, a provincial statute.

[10] Even if the petitioner Amyott (the only one risking an imprisonment) uses the expression “quasy-criminal nature”, it is not relevant.

[11] In Beaulac, it is said: “The courts called upon to deal with criminal matters are therefore required to be institutionally bilingual in order to provide for the equal use of the two official languages of Canada. This is a substantive right and not a procedural one that can be interfered with. “ (Underlined by the Court)

[12] The Code of Penal Procedure doesn’t incorporate section 530 of the Criminal code.

[13] Also, even when section 530 of the Criminal code applies, a bilingual trial may be authorized.

[14] Under the Charter of the French language, French is the Quebec’s language justice. However, although according to paragraph 7, everybody may use French or English in all cases before the Quebec’ courts.

[15] Section 14 of the Canadian Charter of Rights and Freedoms guarantees the right of having an interpreter. However, the right to an interpreter is independent of the right to a full defence.

[16] As stated by the Supreme Court of Canada in R. v. Beaulac, language rights and trial fairness are distinct. The right to full answer and defence is linked with linguistic abilities only in the sense that the accused must be able to understand and must be understood at his own trial.

[17] The right to a fair trial is universal and can’t be greater for members of official language communities than for people speaking other languages. Language rights have a totally distinct origin and role. They are meant to protect official language minorities in this country and to insure the equality of status of French and English.

[18] Section 133 of the Constitution Act of 1867 (LC 1867) specifies the judicial proceedings’ language before the Courts: “Either the English or the French (…) may be used by any Person or in any Pleading or Process in or issuing from any Court of Canada established under this Act, and in or from all or any of the Courts of Quebec.” (Underlined by the Court)

[19] Pursuant to section 36 of the Charter of Human Rights and Freedoms, the provincial Charter, “every accused person has a right to be assisted free of charge by an interpreter if he does not understand the language used at the hearing (…)”.

[20] The section 204 of the Code of penal procedure provides the use of an interpreter.

[21] Than, the petitioners have the right to express themselves in the official language of their choice but they can’t obligate that the trial be held in English only.

Montréal (Ville de) v. Lecuyer , 2012 QCCM 306 (CanLII) [judgment available in French only]

[OUR TRANSLATION]

b) The unilingual English statement of offence

[16] The Code of penal procedure, CQLR c C-25.1, states at its section 144:

« Penal proceedings shall be instituted by way of a statement of offence. »

[17] It refers to the procedure, once properly served, which initiates penal proceedings in front of the proper court.

[18] The Charter of the French Language, CQLR c C-11, on which the defendant relies, states that:

« 7. French is the language of the legislature and the courts in Québec, subject to the following:

(…)

(4) either French or English may be used by any person in, or in any pleading in or process issuing from, any court of Québec. » (soulignement du Tribunal)

[19] This exception is consistent with section 133 of the Constitution Act, 1867, 30 & 31 Vict, c 3 and with the Supreme Court of Canada’s decision in Att. Gen. of Quebec v. Blaikie et al., [1979] 2 SCR 1016, 1979 CanLII 21 (SCC), which expressed its opinion as follows:

«But s. 133 is an entrenched provision, not only forbidding modification by unilateral action of Parliament or of the Quebec Legislature but also providing a guarantee to members of Parliament or of the Quebec Legislature and to litigants in the Courts of Canada or of Quebec that they are entitled to use either French or English in parliamentary or legislative assembly debates or in pleading (including oral argument) in the Courts of Canada or of Quebec. » (p. 1026 and 1027)

and

« Hence, not only is the option to use either language given to any person involved in proceedings before the Courts of Quebec or its other adjudicative tribunals (and this covers both written and oral submissions) but documents emanating from such bodies or issued in their name or under their authority may be in either language, and this option extends to the issuing and publication of judgments or other orders. » (p. 1030)

[20] Consequently, the City of Montréal, being a legal person established in the public interest (sec. 300 CCQ), can initiates its proceedings in English or in French in conformity with the Charter of the French Language, contrarely to the defendant’s submission.

8. Where an English version exists of a regulation or other similar act to which section 133 of the Constitution Act, 1867 does not apply, the French text shall prevail in case of discrepancy.

1977, c. 5, s. 8; 1993, c. 40, s. 1.

9. Every judgment rendered by a court of justice and every decision rendered by a body discharging quasi-judicial functions shall, at the request of one of the parties, be translated into French or English, as the case may be, by the civil administration bound to bear the cost of operating such court or body.

1977, c. 5, s. 9; 1993, c. 40, s. 1.

Annotations

Blaikie v. Quebec (Attorney General), [1979] 2 SCR 1016, 1979 CanLII 21 (SCC)

[p. 1022] Sections 8 and 9 of the Charter of the French language, reproduced above, are not easy to reconcile with s. 133 which not only provides but requires that official status be given to both French and English in respect of the printing and publication of the Statutes of the Legislature of Quebec. It was urged before this Court that there was no requirement of enactment in both languages, as contrasted with printing and publishing. However, if full weight is given to every word of s. 133 it becomes apparent that this requirement is implicit. What is required to be printed and published in both languages is described as "Acts" and texts do not become "Acts" without enactment. Statutes can only be known by being printed and published in connection with their enactment so that Bills be transformed into Acts. Moreover, it would be strange to have a requirement, as in s. 133, that both English and French "shall be used in the ... Records and Journals" of the Houses (there were then two) of the Quebec Legislature and not to have this requirement extend to the enactment of legislation.

So, too, is there incompatibility when ss. 11 and 12 of the Charter would compel artificial persons to use French alone and make it the only official language of "procedural documents" in judicial or quasi-judicial proceedings, while section 133 gives persons involved in proceedings in the Courts of Quebec the option to use either French or English in any pleading or process. Whether s. 133 covers the processes of "bodies discharging judicial or quasi-judicial functions", whether it covers the issuing and publication of judgments of the Courts and decisions of "judicial or quasi-judicial" tribunals, and also whether it embraces delegated legislation will be considered later.

[p. 1023] The central issue in this case, reflected in the question posed for determination by this Court, is whether the Legislature of Quebec may unilaterally amend or modify the provisions of s. 133 in so far as they relate to the Legislature and Courts of Quebec. It was the contention of the appellant that the language of the Legislature and of the Courts of Quebec is part of the Constitution of the Province and hence is within the unilateral amending or modifying authority of the Legislature under s. 92(1). Emphasis was, understandably, placed on the words in s. 92(1) "notwithstanding anything in this Act".

[…]

[pp. 1026-1027] What the Jones case decided was that Parliament could enlarge the protection afforded to the use of French and English in agencies and institutions and programmes falling within federal legislative authority. There was no suggestion that it could unilaterally contract the guarantees or requirements of s. 133. Yet it is contraction not enlargement that is the object and subject of Chapter III, Title I of the Charter of the French language. But s. 133 is an entrenched provision, not only forbidding modification by unilateral action of Parliament or of the Quebec Legislature but also providing a guarantee to members of Parliament or of the Quebec Legislature and to litigants in the Courts of Canada or of Quebec that they are entitled to use either French or English in parliamentary or legislative assembly debates or in pleading (including oral argument) in the Courts of Canada or of Quebec.

[…]

[p. 1030] It follows that the guarantee in s. 133 of the use of either French or English "by any person or in any pleading or process in or issuing from ... all or any of the Courts of Quebec" applies to both ordinary Courts and other adjudicative tribunals. Hence, not only is the option to use either language given to any person involved in proceedings before the Courts of Quebec or its other adjudicative tribunals (and this covers both written and oral submissions) but documents emanating from such bodies or issued in their name or under their authority may be in either language, and this option extends to the issuing and publication of judgments or other orders..

Pilote v. Corporation de l'hôpital Bellechasse de Montréal , 1994 CanLII 6005 (QC CA) [judgment available in French only]

[OUR TRANSLATION]

[35] Finally, let us say in closing on this point that, as the Attorney General of Quebec submits, the Quebec government does indeed provide a service for translating English to French, and vice-versa, upon request by a party to the case. This is not a certified translation, nor is it an automated translation attached to the original. However, in my view, this service is sufficient to respond to every requirement under Quebec’s Charter of Human Rights and Freedoms, even if we concluded that the Charter grants parties the right to demand such a translation, which I, personally, am not prepared to confirm.

10. (Replaced).

1977, c. 5, s. 10; 1993, c. 40, s. 1.

11. (Replaced).

1977, c. 5, s. 11; 1993, c. 40, s. 1.

12. (Replaced).

1977, c. 5, s. 12; 1993, c. 40, s. 1.

13. (Replaced).

1977, c. 5, s. 13; 1993, c. 40, s. 1.

Annotations

Blaikie v. Quebec (Attorney General), [1979] 2 SCR 1016, 1979 CanLII 21 (SCC)

[…]

[pp. 1028-1029] Even if this not be the view of the Quebec Legislature in enacting ss. 11, 12 and 13 above-mentioned, the reference in s. 133 to "any of the Courts of Quebec" ought to be considered broadly as including not only so-called s. 96 Courts but also Courts established by the Province and administered by provincially-appointed Judges. It is not a long distance from this latter class of tribunal to those which exercise judicial power, although they are not courts in the traditional sense. If they are statutory agencies which are adjudicative, applying legal principles to the assertion of claims under their constituent legislation, rather than settling issues on grounds of expediency or administrative policy, they are judicial bodies, however some of their procedures may differ not only from those of Courts but also from those of other adjudicative bodies. In the rudimentary state of administrative law in 1867, it is not surprising that there was no reference to non-curial adjudicative agencies. Today, they play a significant role in the control of a wide range of individual and corporate activities, subjecting them to various norms of conduct which are at the same time limitations on the jurisdiction of the agencies and on the legal position of those caught by them. The guarantee given for the use of French or English in Court proceedings should not be liable to curtailment by provincial substitution of adjudicative agencies for Courts to such extent as it compatible with s. 96 of the British North America Act.

[…]

Blaikie v. Quebec (Attorney General ), [1981] 1 SCR 312, 1981 CanLII 14 (SCC)

[p.318] […] [A] rehearing was ordered in the following terms:

[…]

Does s. 133 of the British North America Act apply to regulations or orders of statutory bodies or regulations or by-laws of municipalities and school boards (in so far as they come within ss. 9 and 10 of Chapter III of Title I of the Charter of the French Language), as distinct from orders in council and ministerial orders or regulations which were in issue in the appeal to this Court and which under the judgment of this Court of December 13, 1979 were held to be within the terms of s. 133?

[…]

[pp. 318-319] In the course of the rehearing, members of the Court were provided with a tentatively exhaustive list of over one hundred provincial boards, councils, committees, commissions, tribunals, courts, corporations and other institutions or bodies and classes of institutions or bodies empowered by provincial statutes to enact regulations, rules, by-laws or other enactments of a legislative nature.

Given the fact that some of these classes comprise several hundred institutions or bodies, such as town councils, there would appear to be just in the Province of Quebec well over two thousand lawmaking agencies other than the Legislature. These range from the provincial Government itself at one end to municipal councils and school boards at the other, with dozens of boards or other bodies in between.

The phenomenal growth of delegated legislation since 1867 is illustrated by some relatively recent figures: in 1975, 1976 and 1977, a yearly average of over 700 enactments of a legislative nature, other than statutes, have been published in the Quebec Official Gazette; these do not include innumerable by-laws enacted by municipal authorities: Gilles Pépin, “Le pouvoir réglementaire et la Charte de la langue française”, (1978) 13 R.J.T. 107, at p. 109.

It must be emphasized that regulations or orders in issue in the case at bar are regulations or orders which constitute delegated legislation properly so called and not rules or directives of internal management.

[…]

[pp. 320-321] The Government of the province is not a body of the Legislature’s own creation. It has a constitutional status and is not subordinate to the Legislature in the same sense as other provincial legislative agencies established by the Legislature. Indeed, it is the Government which, through its majority, does in practice control the operations of the elected branch of the Legislature on a day to day basis, allocates time, gives priority to its own measures and in most cases decides whether or not the legislative power is to be delegated and, if so, whether it is to hold it itself or to have it entrusted to some other body.

Legislative powers so delegated by the Legislature to a constitutional body which is part of itself must be viewed as an extension of the legislative power of the Legislature and the enactments of the Government under such delegation must clearly be considered as the enactments of the Legislature for the purposes of s. 133 of the B.N.A. Act.

It is true that the above-mentioned conventions of the Constitution were well-established in 1867 and the delegation of legislative powers to the Executive was not then unknown. But such delegation was used sparingly and almost by way of exception. The exception has now become the rule in some matters to the point where a large and important part of the laws in force in the Province consists of regulations made by the Executive. The requirements of s. 133 of the B.N.A. Act would be truncated, as was said by this Court at p. 1027 of its reasons, should this section be construed so as not to govern such regulations.

Regulations enacted by the Government to alter regulations made by a subordinate body must also be included in this class. This was not conceded by the Attorney General of Quebec. But there is no valid reason for distinguishing such regulations from ordinary Government regulations. (There would appear to be very few regulations of this type under statutes now in force in Quebec.)

[…]

[p. 326] III Other regulations

This residual class includes all regulations of the civil administration and of semi-public agencies contemplated by the Charter other than government, municipal and school bodies regulations. However, this class does not include court rules of practice which will be separately dealt with later.

[…]

[p. 333] What was not contemplated in 1867 was the multiplication of non-curial adjudicative agencies. At p. 1029 of its reasons for judgment, this Court has already held that it could not ignore this modern development on overly-technical grounds and refuse to extend to proceedings before quasi-judicial tribunals the constitutional guarantee of the right to use either French or English by those subject to their jurisdiction. It would be equally overly-technical to hold that the rules of practice made by such tribunals should remain beyond the reach of s. 133 because their subject-matter is quasi-judicial in nature, rather than judicial.

V Conclusion

The constitutional question on the rehearing is answered as follows:

Section 133 of the British North America Act applies to regulations enacted by the Government of Quebec, a minister or a group of ministers and to regulations of the civil administration and of semi-public agencies contemplated by the Charter of the French Language which, to come into force, are subject to the approval of that Government, a minister or a group of ministers. Such regulations are regulations or orders which constitute delegated legislation properly so called and not rules or directives of internal management.

Section 133 also applies to rules of practice enacted by courts and quasi-judicial tribunals.

[p. 334] Section 133 does not apply to municipal or school bodies by-laws even when subject to the approval of the Government, a minister or a group of ministers.

Chapter IV – The Language of the Civil Administration

14. The Government, the government departments, the other agencies of the civil administration and the services thereof shall be designated by their French names alone.

1977, c. 5, s. 14.

15. The civil administration shall draw up and publish its texts and documents in the official language.

This section does not apply to relations with persons outside Québec, to publicity and communiqués carried by news media that publish in a language other than French or to correspondence between the civil administration and natural persons when the latter address it in a language other than French.

1977, c. 5, s. 15.

16. The civil administration shall use the official language in its written communications with other governments and with legal persons established in Québec.

1977, c. 5, s. 16; 1993, c. 40, s. 2.

17. The Government, the government departments and the other agencies of the civil administration shall use only the official language in their written communications with each other.

1977, c. 5, s. 17, s. 14.

18. French is the language of written internal communications in the Government, the government departments, and the other agencies of the civil administration.

1977, c. 5, s. 18, s. 14.

19. The notices of meeting, agendas and minutes of all deliberative assemblies in the civil administration shall be drawn up in the official language.

1977, c. 5, s. 19.

20. In order to be appointed, transferred or promoted to an office in the civil administration, a knowledge of the official language appropriate to the office applied for is required.

For the application of the preceding paragraph, each agency of the civil administration shall establish criteria and procedures of verification and submit them to the Office québécois de la langue française for approval, failing which the Office may establish them itself. If the Office considers the criteria and procedures unsatisfactory, it may either request the agency concerned to modify them or establish them itself.

This section does not apply to bodies or institutions recognized under section 29.1 which implement the measures approved by the Office according to the third paragraph of section 23.

1977, c. 5, s. 20; 1983, c. 56, s. 2; 1993, c. 40, s. 3; 2000, c. 57, s. 1; 2002, c. 28, s. 34.

21. Contracts entered into by the civil administration, including the related sub-contracts, shall be drawn up in the official language. Such contracts and the related documents may be drawn up in another language when the civil administration enters into a contract with a party outside Québec.

1977, c. 5, s. 21.

22. The civil administration shall use only French in signs and posters, except where reasons of health or public safety require the use of another language as well.

In the case of traffic signs, the French inscription may be complemented or replaced by symbols or pictographs, and another language may be used where no symbol or pictograph exists that satisfies the requirements of health or public safety.

The Government may, however, determine by regulation the cases, conditions or circumstances in which the civil administration may use French and another language in signs and posters.

1977, c. 5, s. 22; 1993, c. 40, s. 4.

Annotations

Ste-Anne-de-Bellevue (Ville de) v. Mohseni Moghadam , 2011 QCCM 235 (CanLII) [judgment available in French only]

[OUR TRANSLATION]

[1] The parking ticket alleges that on February 25, 2010, the defendant parked her vehicle illegally in a parking space [translation] “reserved for permit holders”. Box “C” of the ticket indicates that the traffic sign facing 7 Maple Street in Sainte-Anne-de-Bellevue was marked as follows: “réservé vignette citoyens 8 h - 17 h”.

[2] In defence, the defendant explains that the information on the sign was unilingual French whereas she is unilingual English and, consequently, could not have understood the meaning of the message.

[…]

[15] After scrutinizing almost 200 documents relating to the use of French in Quebec, the Court concluded that the legislation and regulations in effect on the subject are those mentioned above; the research that was done did not reveal any legislative provision supporting the defence submitted by the defendant.

[16] No case law on this subject could be found either.

[17] All the relevant keywords were selected by the Court in an attempt to verify whether there is existing precedent for this defence.

[18] Moreover, as mentioned above, the defendant has not contested the validity or inoperability of any provision of the law or the regulations and has not made any serious arguments, other than the good faith statement that the province of Quebec is a bilingual province and that, for this reason, signs should be displayed in French and English.

[19] However, despite the specific provisions concerning the language for signs and posters (section 22 mentioned above), the Charter of the French Language decrees right from the outset in section 1 that “French is the official language of Quebec”.

Questions of health and public safety (s. 22 of the Charter of the French Language)

[20] That said, the Court must now consider whether, in light of the facts provided in this case and under section 22 of the Charter of the French Language, the parking sign concerns a question of health or public safety.

[21] Indeed, the Charter provides, in section 22, that “the French inscription may be complemented or replaced by symbols or pictographs, and another language may be used where no symbol or pictograph exists that satisfies the requirements of health or public safety”. Everything therefore depends on the facts and must be analyzed on a case-by-case basis.

[22] Does the sign reserving parking for vignette holders, written exclusively in French, raise issues related to health or public safety?

[23] The present case concerns a sign for parking in a residential area. The Court fails to see how a public health issue could be raised if the text of the sign appears only in the language provided for by law.

[24] Things are less clear with respect to public safety. Upon initial examination, certain road signs could very well be linked to issues of “public safety”. Prohibiting parking in an area reserved for emergency vehicles (fire) is an example where non-compliance with this requirement could jeopardize the safety (and even the health) of the population, if a vehicle were to prevent a fire truck from quickly gaining access to a site in the case of an emergency.

[25] There is no “official” definition of “public safety” in Quebec’s legislation. However, there is a Civil Protection Act for “the protection of persons and property against disasters, through mitigation measures, emergency response planning, response operations in actual or imminent disaster situations and recovery operations”.

[26] Even though this definition may help shed light on what constitutes a “public safety” issue, the Court believes that, based on its notion of “disasters”, this law requires more serious parameters other than the simple notion of “public safety”.

[...]

[30] It should be understood that the “risk” of being issued a ticket for failing to comply with the sign in question certainly does not fall within the scope of the definition of “public safety”.

[31] Furthermore, the sign is not incomprehensible to anyone who does not speak French. In fact, it includes indications (8 h - 17 h) that are not only numbered -which is an international language – but also include the letter “h” indicating the word “heure” in French, as well as “hour” in English.

[32] It is true that in practice, 8 AM - 5 PM is usually written in the English language. But in these circumstances, it is not reasonable to believe that the defendant was unable to understand that these symbols represented times.

[33] These indications do not require any knowledge of French in order to understand the meaning.

[…]

[37] Therefore, within the meaning of section 22 of the Charter, this is not a situation where health or public safety requirements demand the use of a language other than French.

22.1. In the territory of a municipality, a specific term other than a French term may be used in conjunction with a generic French term to designate a thoroughfare if the term is sanctioned by usage or if its use has unquestionable merit owing to its cultural or historical interest.

1983, c. 56, s. 3; 1996, c. 2, s. 112.

23. The bodies and institutions recognized under section 29.1 must ensure that their services to the public are available in the official language.

They must draw up their notices, communications and printed matter intended for the public in the official language.

They must devise the necessary measures to make their services to the public available in the official language, and criteria and procedures for verifying knowledge of the official language for the purposes of application of this section. These measures, criteria and procedures are subject to approval by the Office.

1977, c. 5, s. 23; 1983, c. 56, s. 4; 1993, c. 40, s. 5; 2000, c. 57, s. 2.

24. The bodies and institutions recognized under of section 29.1 may erect signs and posters in both French and another language, the French text predominating.

1977, c. 5, s. 24; 1993, c. 40, s. 6; 2000, c. 57, s. 3.

25. (Repealed).

1977, c. 5, s. 25; 1983, c. 56, s. 5.

26. The bodies and institutions recognized under section 29.1 may use both the official language and another language in their names, their internal communications and their communications with each other.

In the recognized bodies and institutions, two persons may use what language they choose in written communications to one another. However, a body or institution shall, at the request of a person required to consult such a communication in the course of his duties, prepare a French version of it.

1977, c. 5, s. 26; 1983, c. 56, s. 6; 1993, c. 40, s. 7; 2000, c. 57, s. 4.

27. In the health services and the social services, the documents filed in the clinical records shall be drafted in French or in English, as the person drafting them sees fit. However, each health service or social service may require such documents to be drafted in French alone. Resumés of clinical records must be furnished in French on demand to any person authorized to obtain them.

1977, c. 5, s. 27.

28. Notwithstanding sections 23 and 26, school bodies recognized under section 29.1 may use the language of instruction in their communications connected with teaching without having to use the official language at the same time.

1977, c. 5, s. 28; 1983, c. 56, s. 7; 1993, c. 40, s. 8; 2000, c. 57, s. 5.

29. (Repealed).

1977, c. 5, s. 29; 1993, c. 40, s. 9.

29.1. English language school boards and the Commission scolaire du Littoral are recognized school bodies.

The Office shall recognize, at the request of the municipality, body or institution,

(1) a municipality of which more than half the residents have English as their mother tongue;

(2) a body under the authority of one or more municipalities that participates in the administration of their territory, where each such municipality is a recognized municipality; or

(3) a health and social services institution listed in the Schedule, where it provides services to persons who, in the majority, speak a language other than French.

The Government may, at the request of a body or institution that no longer satisfies the condition which enabled it to obtain the recognition of the Office, withdraw such recognition if it considers it appropriate in the circumstances and after having consulted the Office. Such a request shall be made to the Office, which shall transmit it to the Government with a copy of the record. The Government shall inform the Office and the body or institution of its decision.

1993, c. 40, s. 10; 2000, c. 57, s. 6; 2002, c. 28, s. 2.

Annotations

Westmount (Ville de) v. Québec (Procureur Général du), 2001 CanLII 13655 (QC CA) [judgment available in French only]

[OUR TRANSLATION]

[18] Another law that is a part of this reform and includes certain provisions that are also being contested is the Act to amend the Charter of the French Language. This Act amends the condition requiring a municipality to obtain recognition of bilingual status. Previously, a municipality could obtain this status if a majority of its residents spoke a language other than French. Now, this status is subject to the condition that the majority of its citizens identify English as their mother tongue.

[...]

[29] In strictly linguistic terms, the Charter of the French Language is applicable to municipalities and the MUC [Montréal Urban Community]. In concrete terms, several cities on the island of Montréal, most notably the City of Westmount, hold a certificate issued under the authority of section 29.1, which authorizes them to use English in their administration and for all internal and external communications.

[30] This regime will be replaced by the one decreed by Bill 170. This voluminous legislation, assented to in December 2000 and substantially amended by the 512 sections of Bill 29 enacted six months later, transforms the administrative organization of the territory currently governed by the municipalities comprising the urban communities of Montréal, Québec and the Outaouais and those located on the south shores of Québec and Montréal. A schedule to Bill 170 is dedicated to each new city. Montréal is, for its part, governed by Schedule I, and, for the purposes of this order, unless otherwise indicated, references to sections are those in this schedule.

[…]

[40] With respect to the recognition of English, Bill 170 provides that “Montréal is a French-speaking city” and maintains the linguistic status of the boroughs derived from the cities that had received recognition pursuant to section 29.1 of the Charter of the French Language. These boroughs therefore continue to use English in the administration and internal and external communications. Lastly, Bill 171, enacted in the same session as Bill 170, amends section 29.1 of the Charter of the French Language by submitting the recognition of a special linguistic status to “a body under the authority of one or more municipalities that participates in the administration of their territory, where each such municipality is a recognized municipality”. According to the appellants’ interpretation, this amendment and the one made to the schedule of the Charter of the French Language make it impossible for the so-called “bilingual” status to be obtained by boroughs derived from one or more municipalities that did not have this status before the adoption of the municipal reform.

[41] From this long parallel of the main elements of the current municipal regime and the one established by Bills 170 and 29, we can draw the following conclusions:

[…]

5) the city and the boroughs retain the same linguistic status (French or bilingual) as the urban community or cities from which they were derived.

[…]

IV. THE INTERVENTIONS

A. The Commissioner of Official Languages

[203] The trial judge granted the Commissioner of Official Languages leave to intervene in this issue. However, unlike the appellants, she in no way attacked Bill 170, but rather Bill 171, which was enacted concurrently and amends section 29.1 of the Charter of the French Language.

[204] As noted above, before the enactment of Bill 171, section 29.1 of the Charter of the French Language provided that the Office was to, “for the purposes of the provisions of the third paragraph of section 20 and sections 23, 24, 26 and 28, recognize, at their request, the municipal bodies […] that provide services to persons who, in the majority, speak a language other than French” (emphasis added). This is what is meant by cities with “bilingual status”, which the appellants instead charaterize as “Anglophone” cities.

[205] The amendment was intended to restrict this recognition to “a municipality of which more than half the residents have English as their mother tongue” (emphasis added).

[…]

[213] In this particular case, the cities that had “bilingual status” are transformed into “bilingual boroughs.” Bill 170 specifically provides that this status can only be withdrawn at their request.

[214] The appellants point out that the services offered by the “Anglophone” cities are more extensive than those specifically authorized in section 29.1 and the other provisions of the Charter of the French Language, which is accurate. However, Bill 171 in no way modifies their legal status, since bilingual boroughs retain the same rights and privileges that previously belonged to the bilingual or so-called “Anglophone” cities within the meaning of the Charter of the French Language.

[215] The appellants complain that it would be easier to withdraw the status of a bilingual city in the future. This is an allegation that is not supported by evidence. Furthermore, if the government acted in this way, it would then be possible to assert the claims that are currently being made by the Commissioner.

[216] The legal situation of the appellant cities therefore remains unchanged in terms of linguistic rights, since the Charter of the French Language continues to govern the use of French and English in municipal institutions. Let us pause for a moment to recall that this also holds true for section 1 of Bill 170, which was the subject of considerable criticism by the appellants. That section declares that Montréal is a French-speaking city. Yet this purely declaratory text does not in any way add to or subtract from the rules already established by the Charter of the French Language, which prompted the trial judge to write that it was superfluous and unnecessarily [translation] “provocative”. In any case, it cannot be concluded, as argued by some of the appellants, that this section demonstrates that the government is not really seeking to reform municipal structures, but is pursuing an ulterior motive, which is to deprive the English-speaking community of its institutions.

Chapter V – The Language of the Semipublic Agencies

30. The public utility enterprises, the professional orders and the members of the professional orders must arrange to make their services available in the official language.

They must draw up their notices, communications and printed matter intended for the public, including public transportation tickets, in the official language.

1977, c. 5, s. 30; 1994, c. 40, s. 457; 1999, c. 40, s. 45.

Annotations

Sutton v. R., 1983 CarswellQue 578, [1983] C.S.P. 1001, J.E. 83-320 [hyperlink not available] [judgment available in French only]

[OUR TRANSLATION]

[2] The facts are quite simple. On March 30, 1971, Gérard Buisson was injured during the course of his work at the Canadian Broadcasting Corporation. [...]

[3] On November 17, 1980, he consulted the respondent for two reasons: first, he wanted to be treated because his pain was not going away, and second, having filed an appeal with the Workmen’s Compensation Commission, he wanted to obtain an expert assessment that would increase the percentage of his disability, if possible. The interview took place in French, and Dr. Sutton consequently confirmed that his condition required an increase in his disability rate; Mr. Buisson immediately agreed to pay him $200 to cover the cost of a medical assessment to be drafted accordingly, without specifying the language in which he wanted it.

[6] Fearing that he would misrepresent his thoughts and make errors from a medical and scientific standpoint, the respondent, on December 9, 1980, as a precautionary measure and a matter of professional conscience, drafted the said assessment in English, addressed to Mr. La Charité, not daring to express information in French that he was used to articulating in English.

[…]

[8] Upon receiving the assessment written in English, Mr. La Charité suggested that his client file a complaint with the Office de la protection du consommateur. That complaint was redirected to the Office de la langue française, which intervened through its supervisory committee on February 2, 1981, in the form of a letter from Pierre Chouinard, the investigating commissioner, requiring the respondent to comply with the provisions of the Charter of the French Language by providing Mr. Buisson with a French version of his medical assessment report.

[…]

[23] This case involves a French-speaking patient who required the services of an English-speaking orthopedic doctor. The day after the examination, a French-speaking lawyer confirmed the request of the patient, who is his client. The matter at stake is one of establishing a diagnosis for a man with a physical disability and conducting a thorough and scientific assessment of the factors supporting an increase in this disability rate. Here, the doctor is no longer in the free and nebulous domain of a conversation where he is explaining to his client, in French, what he already knows, at that particular point in time, he will have to later communicate in his language, with the appropriate scientific and medical rigour.

[…]

[29] The right of a witness to testify in his or her language has always been recognized. It is a constitutional right.

[30] The respondent had the right to testify in English before the Workmen’s Compensation Commission.

[31] The Code of Civil Procedure, the exclusive purview of the Quebec legislature, provides in Division V, Examination of Witnesses, at section 294.1, that the court may accept a medical report as the doctor’s testimony under certain conditions.

[32] On one hand, the respondent had the right to provide the administrative tribunal with a medical report written in English.

[33] On the other hand, Mr. Buisson and/or his lawyer had the right to require that the assessment report be provided in French. This right simply had to be exercised at the time that the services were requested. This right was not exercised. When the services were requested, no request was made to obtain the report in French. It was only after the report was received that the request was made. It was too late. That is why, in my opinion, all the subsequent actions do not seem relevant to this dispute.

30.1. The members of the professional orders must, where a person who calls upon their services so requests, provide a French copy of any notice, opinion, report, expertise or other document they draw up concerning that person, without requiring a charge for translation. The request may be made at any time.

1983, c. 56, s. 8; 1997, c. 24, s. 1.

31. The public utility enterprises and the professional orders shall use the official language in their written communications with the civil administration and with legal persons.

1977, c. 5, s. 31; 1994, c. 40, s. 457; 1999, c. 40, s. 45.

32. The professional orders shall use the official language in their written communications with their general membership.

They may, however, in communicating with an individual member, reply in his language.

1977, c. 5, s. 32; 1994, c. 40, s. 457.

33. Sections 30 and 31 do not apply to communiqués or publicity intended for news media that publish in a language other than French.

1977, c. 5, s. 33.

34. The professional orders shall be designated by their French names alone.

1977, c. 5, s. 34; 1994, c. 40, s. 457.

35. The professional orders shall not issue permits except to persons whose knowledge of the official language is appropriate to the practice of their profession.

A person is deemed to have the appropriate knowledge if

(1) he has received, full time, no less than three years of secondary or post-secondary instruction provided in French;

(2) he has passed the fourth or fifth year secondary level examinations in French as the first language;

(3) from and after the school year 1985-86, he obtains a secondary school certificate in Québec.

In all other cases, a person must obtain a certificate issued by the Office québécois de la langue française or hold a certificate defined as equivalent by regulation of the Government.

The Government, by regulation, may determine the procedures and conditions of issue of certificates by the Office, establish the rules governing composition of an examining committee to be formed by the Office, provide for the mode of operation of that committee, and determine criteria for evaluating the appropriate knowledge of French for the practice of a profession or a category of professions and a mode of evaluating such knowledge.

1977, c. 5, s. 35; 1983, c. 56, s. 9; 1993, c. 40, s. 11; 1994, c. 40, s. 457; 2002, c. 28, s. 34.

Annotations

Forget v. Quebec (Attorney General), [1988] 2 SCR 90, 1988 CanLII 51 (SCC)

[29] Respondent further argued that those sections are void because they are discriminatory under administrative law. She maintained that s. 35 of the Charter of the French language does not empower the Office to enact regulations that distinguish between classes of candidates. In respondent's submission, this provision should be read as authorizing the Office either to have a test administered to all candidates or not to impose a test on anyone. The Regulations designed to assess knowledge of French should be applied to all professional candidates in the same way without distinction.

[30] In theory, the power to regulate does not include the power to discriminate. Accordingly, where a statute contains no authorization, express or implied, a discriminatory regulation may be challenged and set aside. This rule was recognized by this Court in City of Montréal v. Arcade Amusements Inc., 1985 CanLII 97 (SCC), [1985] 1 SCR 368. Speaking for the Court, Beetz J. said (at p. 404):

The rule that the power to make by‑laws does not include that of enacting discriminatory provisions unless the enabling legislation provides the contrary has been observed from time immemorial in British and Canadian public law.

[31] After quoting the relevant passages from the remarks of Lord Russell C.J. in Kruse v. Johnson, [1898] 2 Q.B. 91, Beetz J. went on (at pp. 405‑6):

Lord Russell of Killowen accordingly distinguished between the aspect of a by-law's political opportunity, which he referred to as its reasonableness or unreasonableness in the narrow sense, and its reasonableness or unreasonableness in the wide sense, to which he gave a negative legal definition. According to that definition, by-laws are only unreasonable in the wide or legal sense, and ultra vires, if: (1) they are partial and unequal in operation between different classes; (2) they are manifestly unjust; (3) they disclose bad faith; and (4) they involve such oppressive or gratuitous interference with the rights of those subject to them as can find no justification in the minds of reasonable men. It is important to note that the first category of by-laws unreasonable in the legal sense mentioned by Lord Russell of Killowen is that of by-laws which are discriminatory in the non‑pejorative but most neutral sense of the word, and which are rendered invalid even though the distinction on which they are based is perfectly rational or reasonable in the narrow or political sense, and was conceived and imposed in good faith, without favouritism or malice.

[32] In the absence of express provisions to the contrary or delegation by necessary implication, the legislator reserves the exclusive right to discriminate. The issue in the case at bar is therefore whether s. 35 of the Charter of the French language confers on the Office the power to enact regulations that distinguish between classes of professional candidates. It is clear from a reading of this provision that it does not expressly authorize the Office to distinguish by regulation between candidates who have taken at least three years' instruction in French, and benefit from a presumption of knowledge, and all others who must then take the test. Section 35 of the Act first states a duty: "[appropriate knowledge of the official language] must be [proven] in accordance with the regulations of the Office de la langue française . . . ." The procedure for proving such knowledge is left at the discretion of the Office, which may, though it does not have to, "provide [by regulation] for the holding of examinations and the issuance of certificates". Section 35 thus empowers the Office to adopt regulations enabling it to assess the knowledge of French of professional candidates. This provision does not require the Office to adopt one means only of measuring the level of knowledge of French. On the contrary, use of the word "may" clearly indicates that the legislator intended to confer a discretion on the Office as to the kind of proof it will require by regulation. Under section 35 of the Act, the Office has the power to enact any method of proof it considers necessary to assess a candidate's appropriate knowledge of French, including the holding of examinations and issuing of certificates. In giving the Office the right to establish by regulation various methods of assessing knowledge of French, the Act by implication confers on the Office the power to distinguish between classes of candidates. If the legislator had intended that knowledge of French be assessed by only one method of proof applicable to all professional candidates, he would have stated that intent clearly. For example, the statute might have imposed on the Office a duty to measure knowledge of French by holding an examination. There would then be no doubt that all candidates without distinction would have to take the test: but that is not the case here. Section 35 of the Act provides that the Office may, but is not required to, hold an examination. The test in the case at bar is not an exclusive method of proof for assessing a candidate's knowledge of French. The Office is not in any way prohibited from introducing by regulation a presumption of appropriate knowledge of French, provided that presumption is rational and reasonable. Section 35 therefore authorizes the Office to enact various methods of determining whether candidates meet the requirement of the Act, and it accordingly by necessary implication confers on the Office the power to distinguish between classes of candidates.

[…]

[36] […] One of the duties incumbent on the Office is stated in s. 35 of the Act: the Office must enact regulations for the purpose of assessing whether professional candidates have an appropriate knowledge of French. To assist it in providing the services needed to test such knowledge, s. 114(d) of the Act authorizes the Office to establish a committee. Subdelegation is therefore not unauthorized, since the Act clearly empowers the Office to create committees if need be.

36. Within the last two years before obtaining a qualifying diploma for a permit to practise, every person enrolled in an educational institution that issues such diploma may give proof that his knowledge of the official language meets the requirements of section 35.

1977, c. 5, s. 36.

37. The professional orders may issue temporary permits valid for not more than one year to persons from outside Québec who are declared qualified to practise their profession but whose knowledge of the official language does not meet the requirements of section 35.

1977, c. 5, s. 37; 1994, c. 40, s. 457.

38. The permits envisaged in section 37 may be renewed, only three times, with the authorization of the Office québécois de la langue française and if the public interest warrants it. For each renewal, the persons concerned must sit for examinations held according to the regulations of the Government.

In its annual report of activities, the Office shall indicate the number of permits for which it has given authorization for renewal pursuant to this section.

1977, c. 5, s. 38; 1993, c. 40, s. 12; 2002, c. 28, s. 34.

39. Persons having obtained, in Québec, a diploma referred to in section 36 may, until the end of 1980, avail themselves of sections 37 and 38.

1977, c. 5, s. 39.

40. Where it is in the public interest, a professional order, with the prior authorization of the Office québécois de la langue française, may issue a restricted permit to a person already authorized under the laws of another province or another country to practise his profession. This restricted permit authorizes its holder to practise his profession for the exclusive account of a single employer, in a position that does not involve his dealing with the public.

In the case of this section, a permit may be issued to the spouse as well.

1977, c. 5, s. 40; 1983, c. 56, s. 10; 1994, c. 40, s. 457; 2002, c. 28, s. 34.

Chapter VI – The Language of Labour Relations

41. Every employer shall draw up his written communications to his staff in the official language. He shall draw up and publish his offers of employment or promotion in French.

1977, c. 5, s. 41.

Annotations

Bekteshi et Garderie la famille Tweety , 2013 QCCRT 147 (CanLII) [judgment available in French only]

[OUR TRANSLATION]

[1] On November 20, 2012, Najada Bekteshi (the complainant) filed a complaint under section 45 of the Charter of the French Language, R.S.Q. c. C-11 (the Charter) against Garderie la famille Tweety (the employer). She alleges that she was dismissed after a number of discussions that she had with the manager of the daycare concerning the use of English during activities with her group of children.

[…]

THE USE OF ENGLISH WITH CHILDREN

[7] In early November 2012, a new child joined the complainant’s group. The child’s father required that the complainant speak to him exclusively in English. She expressed her disagreement and, according to her, this was when the manager instructed her to speak exclusively in English to the children in her group. The manager contradicts the complainant: she asked her to use both languages in equal proportions.

[8] The complainant was concerned about the situation. She was worried about violating the Charter and asked different people in her circle of family and friends for advice before bringing up the issue with the manager.

[9] On November 14, the complainant and the manager had a heated exchange about the use of English with the children in her group.

[10] The complainant believes she is not respecting the requirements of the Charter. She stresses that the manager was ranting against the Charter and repeating that she had the right to manage the daycare as she sees fit. The manager says that, on the contrary, she immediately contacted a representative of the Office québécois de la langue française and provided the complainant with confirmation that the daycare could use English with the children.

[11] Dissatisfied, the complainant demanded that the manager fill out a document releasing her from any liability in the event of a violation of the Charter.

[…]

[18] [...] on November 16, the complainant did not show up for work. The manager decided to dismiss her [...]

[…]

[20] The complaint is based on section 45 of the Charter: [...]

[21] One of the provisions of the Labour Code, R.S.Q. c. C-27 (the Code) referenced in section 45 of the Charter concerns a rebuttable presumption in favour of the employee, which is found in section 17 of the Code:

If it is shown to the satisfaction of the Commission that the employee exercised a right arising from this Code, there is a simple presumption in his favour that the sanction was imposed on him or the action was taken against him because he exercised such right, and the burden of proof is upon the employer that he resorted to the sanction or action against the employee for good and sufficient reason.

[22] To benefit from the presumption, the complainant must prove that she was a member of staff of the daycare and that she was dismissed for any of the three reasons mentioned in this provision, that is:

- because she is exclusively French-speaking;

- because she has insufficient knowledge of a particular language other than French;

- because she demanded that a right arising from the provisions of Chapter VI of the Charter be respected.

Moreover, according to the case law, there must be some concurrency between her dismissal and the exercise of the protected right.

[23] The complainant does not claim to have been dismissed for either of the first two reasons. Did she exercise a protected right arising from the provisions of Chapter VI of the Charter?

[24] Chapter VI of the Charter, entitled The Language of Labour Relations, stipulates: [...]

[25] Succinctly put, these provisions set out the obligation to use French for communications addressed to staff, for employment or promotion offers, for collective agreements and their schedules and for arbitration awards to dispose of a grievance. They provide for the nullification of juridical acts, decisions and other documents not in conformity with the provisions of Chapter VI of the Charter, and they compel associations of employees to use French in written communications with their members. They create procedures for contesting certain decisions made by the employer.

[26] However, these provisions are limited to the subject matter of the chapter concerning the language of labour relations and do not cover all the situations that a worker may face in the workplace. For example, in the case of Bolduc c. Union internationale des opérateurs ingénieurs-local 484, 2011 QCCRT 577 (CanLII), 2011 QCCRT 0577, the Commission decided that an employee cannot require his or her association of employees to have its financial statements translated into French because they are not written communications with one of the members within the meaning of section 49 of the Charter.

[27] Admittedly, the complainant and the manager had discussions about the use of English with the group of children for which she was responsible. However, she did not demand that a right arising from any of the provisions of Chapter VI of the Charter be respected, that is, in this instance, communication between an employer and members of staff, an offer of employment or requiring another language to gain access to a position or a job. Her dismissal cannot receive any protection under section 45 of the Charter, and her complaint is inadmissible.

Hébert v. Sodema inc., 2010 QCCRT 92 (CanLII) [judgment available in French only]

[OUR TRANSLATION]

[1] On September 8, 2009, Gilles Hébert (the complainant) filed a complaint under section 45 of the Charter of the French Language, R.S.Q., c. C-11. He alleged that he was laid off by Sodema inc./Téléperformance (the employer) on July 15, 2009, because he is a unilingual Francophone.

[2] The employer admits that the complainant was temporarily laid off on that date, but intends to demonstrate that it was due to a shortage of work. However, first and foremost, the employer argues that the complaint is time barred.

[…]

[22] The provisions of the Labour Code referenced in section 45 of the Charter of the French Language concern the powers of the Commission if it allows the complaint, particularly with respect to reinstatement (section 15), a simple presumption in favour of the employee (section 17) and the deadline for filing a complaint (section 16). Section 16 states as follows:

16. The employees who believe that they have been the victim of a sanction or action referred to in section 15 must, if they wish to avail themselves of the provisions of that section, file a complaint at one of the offices of the Commission within thirty days of the sanction or action.

[23] While section 45 of the Charter of the French Language establishes an employee’s right not to be subjected to any measure due to the fact that he or she speaks French, section 46 contains a prohibition against requiring an employee to have knowledge of another language, other than French, to obtain access to a job “unless the nature of the duties requires such knowledge”. Like section 45, this section provides for a remedy before the Commission and references provisions in the Labour Code, including the 30-day limitation period in section 16.

[…]

[31] In applying the reasoning of the Court of Appeal to the present case, it is therefore important to determine whether the deadline in section 16 of the Labour Code can be suspended by filing a complaint with the CDPJ [Commission des droits de la personne et des droits de la jeunesse]. This question inevitably leads to two others:

- does the notion of “civil action” provided in section 76 include a statutory recourse like the one provided in section 45 of the Charter of the French Language?

- what is the nature of the deadline in section 16 of the Labour Code?

Is a complaint pursuant to section 45 of the Charter of the French Language a civil action?

[32] Case law is quite sparse with respect to the interpretation of the term “civil action” in section 76 of the Quebec Charter and practically non-existent with respect to a statutory remedy such as the one set out in section 45 of the Charter of the French Language or in section 15 of the Labour Code.

[33] Nevertheless, the Commission des lésions professionnelles has decided that the term “civil action” is broad enough to cover a claim to the C.S.S.T. (Comeau c. Scovill Canada inc., AZ-80221211, 11 February 2004). In addition, Jacques Vignola, the Labour Commissioner at the time, considered that the term “judicial application” in article 2895 C.C.Q., covered grievance arbitration (Neptune c. Gouvernement du Québec, [2000] R.J.D.T.1121).

[34] The Labour Court has already characterized a complaint filed pursuant to section 15 of the Labour Code, as a civil action, as opposed to a criminal proceeding (Bertrand c. Gagnon, [1980] T.T. 347). As noted by authors Coutu, Fontaine and Marceau, a complaint filed by an employee under section 15 of the Labour Code has the characteristics of a civil action: the dispute involves private parties, the remedy aims to obtain compensation for damages, and the burden of proof is met on a balance of probabilities (M. Coutu, L.L. Fontaine, G. Marceau, Droit des rapports collectifs du travail au Québec, Éd. Yvon Blais, 2009, pp. 233 and 234).

[35] Limiting “civil actions” to those filed before administrative tribunals seems too restrictive, when certain remedies fall within the exclusive jurisdiction of administrative tribunals, such as the one in section 45 of the Charter of the French Language (see Neptune, cited above, para. 9). The Commission therefore concludes that these terms are broad enough to cover a complaint filed under the Charter of the French Language.

[36] In any case, the Commission would not have any difficulty concluding that filing a complaint with the CDPDJ constitutes a judicial application and could be further analyzed from the perspective of article 2895 C.C.Q.

[…]

[53] Two decisions have dealt with the prescription of a complaint under section 45 of the Charter of the French Language. (Théorêt c. L.T. Greenwin Property management inc. AZ-50152879 and Villalva Arellano c. Banque Nationale du Canada, 2006 QCCRT 172 (CanLII), 2006 QCCRT 0172; aff’d 2006 QCCRT 655 (CanLII), 2006 QCCRT 0655). Both allowed a preliminary objection because the complaint was made after the expiry of the prescription period, which in those cases was considered to be a non-suspendable period. However, neither of these two decisions analyzes article 2878 C.C.Q or a reason for suspending prescription.

[…]

[64] The remedy involved in this instance, unlike the one in Alexandra, cited above, only involves private interests. The complaint was filed with the CDPDJ within the deadline stipulated under section 16 of the Labour Code. Therefore, the employer was promptly notified of the remedy, even though it was directed to the wrong forum. The complainant respected the short timeframe provided for recourse under section 45 of the Charter of the French Language by filing a complaint within 30 days of the measure, if we subtract the duration of the suspension of prescription. The employer does not suffer any prejudice as a result of the additional three week period, unlike the complainant, if he is deprived of his right for procedural reasons.

[…]

[68] In conclusion, the Commission finds that section 16 of the Labour Code, referenced in the Charter of the French Language, provides for a limitation period. Filing the complaint with the CDPDJ suspended this limitation period. The complaint was therefore filed within the limitation period. What remains to be determined is whether it has any merit.

Was there a violation of section 45 of the Charter of the French Language?

[69] Section 4 of the Charter of the French Language stipulates that “workers have a right to carry on their activities in French”. Section 45 establishes this right by creating a remedy for employees who are subject to a measure because they speak French or do not speak another language sufficiently. As stated earlier, by referencing the Labour Code, section 45 provides for presumption in favour of the complainant if certain elements, which will be discussed in the next section, are established.

Application of the presumption

[70] The employer argues that the presumption does not apply because the complainant was never required to work in English.

[71] In H.& R. Block c. Gaulin-Lagassé (500-28-000289-793, 25 March 1980), Judge Saint-Arnaud, writing on behalf of the Labour Court, was of the opinion that an employee could benefit from the presumption if he or she demonstrated [translation] “a situation, namely, facts, actions and words, likely to endanger the exercise” of the right to work in French.

[72] The complainant demonstrated that he is a unilingual Francophone, that he was working in French, and that he was laid off at a time which coincided with the employment of bilingual officers. The letter that the employer gave to him at the time that he was laid off explicitly referred to the work accomplished by these bilingual agents who would be more likely to meet the needs. These elements are enough to grant the complainant the benefit of the presumption provided under section 17 of the Labour Code.

The reason for the dismissal

[73] To rebut the presumption, the employer must demonstrate, on a balance of probabilities that the complainant was not laid off solely because he speaks only French. In other words, the employer must demonstrate that the real reason for the layoff was not the fact that the complainant only speaks French. This other reason must be of a substantial nature and not a pretext (Lafrance v. Commercial Photo Service Inc. 1980 CanLII 167 (SCC), [1980] 1 S.C.R. 536, para. 40; Robert Mitchell Ltée c. Lesiège, (1981) T.T. 325).

[74] This case does not concern the requirement of English for employment. In fact, the complainant does not claim that he was capable of holding one of the bilingual agent positions, and he did not file a claim under section 46 of the Charter of the French Language. He was hired to work as a Francophone agent, to respond to calls in French, with the salary associated with the position. He was never required to speak English.

[75] The evidence shows that one of the employer’s major clients withdrew part of the employer’s business volume, which led to a considerable reduction in the number of French calls. The employer had to adopt various measures in view of this decline, such as a reduction in the number of hours worked. These measures caused dissatisfaction among employees. The complainant himself expressed this dissatisfaction in December by writing a letter to his employer in this regard.

[76] It is against this background that the employer opted for temporary layoffs. They are directly related to this reduction in work. The complainant was not the only one affected by this measure and, even if he finds the criteria used by the employer to be debatable, they were applied to all French-speaking employees. There was therefore no move to get rid of the complainant under some pretext.

[77] Certainly, the hiring of the bilingual agents occurred concurrently with the layoffs. However, the evidence shows that this was done to respond to an increase in English calls, which occurred at the same time as the decline in French calls. The employer did not change its linguistic requirements during the course of employment. Moreover, when the need to respond to calls in French increased, the employer recalled the French-speaking agents, including the complainant.

[78] The reduction in French calls was the real cause of the complainant’s layoff.

46. An employer is prohibited from making the obtaining of an employment or office dependent upon the knowledge or a specific level of knowledge of a language other than the official language, unless the nature of the duties requires such knowledge.

A person, whether or not in an employment relationship with the employer, who believes he has been aggrieved by a contravention of the first paragraph and who is not subject to a collective agreement may exercise a remedy before the Administrative Labour Tribunal. The provisions applicable to a remedy relating to the exercise by an employee of a right arising out of the Code apply, with the necessary modifications.

A person who is subject to a collective agreement and who believes he has been so aggrieved may submit the grievance for arbitration if the association representing the person fails to do so.

The remedy is brought before the Tribunal within 30 days after the date on which the employer informed the complainant of the linguistic requirements of the employment or position or, failing that, from the last act of the employer which was invoked to support the allegation of contravention of the first paragraph of this section.

It is incumbent upon the employer to prove to the Tribunal or the arbitrator that the performance of the work requires knowledge or a specific level of knowledge of a language other than French.

If the Tribunal or the arbitrator finds the complaint to be justified, the Tribunal or the arbitrator may issue any order the Tribunal or the arbitrator considers fair and reasonable in the circumstances, in particular an order to cease the act complained of, to perform an act, such as the renewal of the staffing process for the employment or position, or to pay compensation or punitive damages to the complainant.

1977, c. 5, s. 46; 2000, c. 57, s. 8; 2001, c. 26, s. 84; 2015, c. 15, s. 237.

Annotations

Gatineau (Ville de) v. Syndicat des cols blancs de Gatineau inc., 2016 QCCA 1596 (CanLII) [judgment available in French only]

[OUR TRANSLATION]

[23] We have often been reminded in judgments or arbitral awards, and rightly so, that the phrase “nécessite une telle connaissance” (in English, “requires such knowledge”) used by the legislature in section 46 of the CFL [Charter of the French Language] refers to a notion more demanding than the ideas of mere usefulness, convenience or expediency. There is, in fact, a rather obvious difference in the level of intensity when comparing necessity and usefulness. The notion of necessity evokes a sense of incompatibility between the performance of the duties related to the job or position referenced and the lack of knowledge of the language that the employer wishes to associate with that job. The applicable test is one of necessity, understood in this sense, and whether such a situation actually exists is a question of fact for which the burden of proof falls on the employer.

[24] A recent study provides valuable insight into the state of arbitral case law relating to sections 45 and 46 of the CFL. The title of an article by David Robitaille and Pierre Rogué asks the following question: La Charte de la langue française : une entrave aux activités essentielles des entreprises privées de compétence fédérales au Québec? (“The Charter of the French Language: A hindrance to the core activities of federally regulated private companies in Quebec?”). I will refrain from trying to answer this question here. However, their study presents a concise and useful summary of this arbitral case law. They point out, right from the outset, that in the context of employment and staffing, [translation] “several factors may be considered to determine whether the requirement [i.e. knowledge of a language other than French] is justified, and this involves an analysis for which the result depends on the circumstances specific to each case”, adding that their summary [translation] “will clearly show the flexibility with which this test of necessity is implemented in practice”.

[25] Indeed, a demonstration of the two statements I just quoted is compelling. Based on a review of several decisions, the authors draw a number of conclusions that I will paraphrase as follows:

― The requirement of knowing another language is necessary and therefore justified if the employer satisfies a condition of rationality, relevance or reasonableness. In other words, there is a necessity if this condition is reasonable, non-arbitrary, non-discriminatory and determined in good faith. It can also be added, in closing, that the requirement must be [translation] “determined in good faith based on actual service constraints, the proof of which rests on the employer”.

― The ability to communicate in another language must prove to be a key factor for the holder of the position associated with this requirement: based on actual service constraints, oral or written comprehension and expression, or both oral and written comprehension and expression in the language concerned, must be necessary to enable the holder of the position to properly discharge all the assigned responsibilities.

― Contact with the holder of this position, in this language, by a small or even very small minority group of clients, is enough to justify the linguistic requirement if serving these clients is an integral part of the responsibilities associated with the position.

― The condition of necessity also takes the effective accomplishment of the employer’s mission into account: knowledge of another language is necessary if that language alone will allow the same level of services to continue to be provided, or even allow the employer to diversify services and develop a new market segment.

One thing clearly emerges from this analysis: once again, in this case, the facts and rights are closely interconnected. Therefore, any decision subject to the application of section 46 CFL must be based on an in-depth and well-documented understanding of the actual service constraints.

[…]

[39] Perhaps individuals who speak a “language other than the official language” (English, for a purely hypothetical example) would find some comfort in knowing that their lives, as well as their safety, freedom and personal integrity, would not be at risk of being compromised (the arbitrator uses the word [translation] “endanger”) for linguistic reasons, since, as long as vital interests are involved, those they deal with may have to, due to their role, communicate with them in this other language. However, I am unable to convince myself that even a “purposive” interpretation of the CFL can reasonably lead to the conclusion that the knowledge “of a language other than the official language” in the workplace is “necessary” in only three cases: (i) when the position or job exists solely because of the knowledge of this other language, (ii) when one of the four laws mentioned earlier in paragraph [34] is applicable, and (iii) when there is a risk to the life, safety, integrity or freedom of the person who is expressing himself or herself in a “language other than the official language”. I do not believe that the intention of the legislature in adopting section 46 of the CFL was to condescend to this and nothing else. There is a linguistic reality here that varies depending on the region. As a result, some languages that are commonly used, other than the official language, coexist with the official language. Depending on the circumstances, a person who expresses himself or herself in one of these languages should be able to expect an intelligible response in that language, even when the fundamental personal attributes guaranteed by the Charter of Human Rights and Freedoms and the Canadian Charter of Rights and Freedoms are not at risk.

[40] In Quebec, there are several languages, other than the official language, that are spoken legally and legitimately in a wide variety of contexts. Limiting the extent of the notion of necessity to the cases that have just been listed seems overly restrictive. The trial judge, who personally described this interpretation as restrictive, added: [translation] “Would this be the interpretation accepted by the undersigned? It is neither useful nor necessary to answer this question”. Of course, it was not the trial judge’s place to supplant the arbitrator; instead, the trial judge should have pursued the analysis to provide a ruling on the nature, whether reasonable or not, of the challenged decision.

[41] The arbitrator wrote that he used a purposive interpretation of the CFL. However, the interpretation, depending on the purpose of a text or law, is not new and is well known by all judicial or quasi-judicial decision-makers. Nevertheless, the award dated May 15, 2013, was unprecedented (unless one considers the same arbitrator’s award rendered on March 25 of that same year). The interpretation he proposed in that decision did not win over any supporters—on the contrary, an arbitrator hearing a similar grievance rejected this interpretation six months later in terms that clearly demonstrated his disagreement. In general, the circumstances usually considered in the context of arbitral or quasi-judicial case law in order to determine the remedies exercised under section 46 of the CFL could lose any relevance if the interpretation adopted here by the arbitrator is endorsed. This explains the issuance of the award I reproduced above in paragraph [16], in which the arbitrator concluded that there was a complete lack of evidence of necessity: having described this notion as he did, it should not be surprising that none of the information presented to him complied with his definition. Lastly, there can be no doubt that this arbitral award lies, quite significantly, outside the scope of decisions subject to the application of section 46 of the CFL: it is unconventional.

[42] That said, the trial judge should have found in favour of the appellant, quashed the challenged award and allowed the respondent to resubmit his grievance of February 17, 2009, for arbitration, but on the express condition that it must be presented before a different arbitrator. I would therefore allow the appeal.

Lacroix et Le Directeur général des élections du Québec , 2017 QCTAT 683 (CanLII) [judgment available in French only]

[OUR TRANSLATION]

[1] On September 9, 2016, Michel Lacroix (the complainant) filed a document with the Court instituting proceedings based on section 46 of the Charter of the French Language (the Charter). He claims that the Chief Electoral Officer of Quebec (the DGE) refused to hire him as the assistant returning officer in the riding of Orford because he does not speak English.

[…]

[58] Section 46 of the Charter normally obligates employers who require knowledge of a language other than French to fill a position to demonstrate that performance of the related duties requires this knowledge. In the present case, the DGE admitted, right from the outset, that there is no requirement to speak English in order to fill the position of assistant returning officer in the riding of Orford since, in his view, the number of English-speaking voters in that area is simply insufficient.

[59] What is prohibited by section 46 of the Charter is requiring the knowledge of another language to be eligible for a particular position. The notion of a requirement has a mandatory character. In the dictionary “Le nouveau petit Robert”, the term “exiger” (to require) is described as follows: [translation] “to make indispensable, inevitable, obligatory. […] call, command, demand, impose, necessitate, claim, require; obligate” (emphasis added).

[60] An analysis of the evidence does not support the conclusion that requiring knowledge of English to be selected for the position sought has the indispensable and obligatory characteristic provided under section 46 of the Charter.

[61] Management of the entire selection process deserved more rigour and the use of an evaluation grid, which includes mention of the English criterion even if the grid indicates that it is only required in cases where it is justified, could raise questions. And what can be said about the response of the returning officer who, when she explains in the context of an animated conversation how the selected candidate is superior to the complainant, mentions among other things his command of the English language? It is understandable, under the circumstances, that the complainant thought the DGE had rejected him because of his lack of knowledge of the English language.

[62] However, there is no evidence to show that the evaluation of three individuals by the selection committee was done in an arbitrary or fraudulent manner. Moreover, the complainant’s performance was the weakest during the interview, regardless of the fact that an evaluator asked him a question about his knowledge of the English language. In other words, the complainant was not rejected from the position sought because he did not satisfy the knowledge of English requirement. The evidence demonstrates that knowledge of English was not a mandatory prerequisite.

[63] The complainant challenged the result given to him by the evaluators based on various criteria. However, the Court cannot take the selection committee’s place and assume responsibility for evaluating the candidates’ qualifications.

[64] The results of the evaluation process lend credence to the theory that the complainant’s application was not rejected due to the imposition of the knowledge of English requirement.

Cossette v. Société des Casinos du Québec inc., 2008 QCCRT 446 (CanLII) [judgment available in French only]

[OUR TRANSLATION]

[1] On November 26, 2007, the complainant filed a complaint with the Commission under sections 46 and following of the Charter of the French Language (“the Charter”). She is challenging the respondent’s decision to refuse to hire her because of her poor knowledge of the English language. In her complaint, the complainant also argues that to the best of her knowledge, the respondent was not hiring people who had declared bankruptcy. Since this was applicable in her case, she argues that the refusal to hire her was discriminatory against her. On December 10, 2007, the complainant submitted an addendum to her initial complaint: this addendum only mentions the respondent’s failure to comply with the provisions of the Charter.

[…]

[41] It should be understood from this section that the Charter does not prohibit employers from requiring knowledge of a language other than French, although it does require them to justify the necessity. The fifth paragraph of the same section also clarifies that the burden rests with the employer in this regard. If named in a complaint under section 46, the employer must demonstrate “that the performance of the work requires knowledge or a specific level of knowledge of a language other than French”.

[42] Therefore, the issue to be determined in this case is whether performance of the duties related to the position of a security guard at the Casino requires knowledge of English or a certain level of knowledge of this language.

[43] The evidence provided by the employer persuades us, on a balance of probabilities, that performance of the duties of a security guard at the Casino de Montréal requires knowledge of the English language.

[44] On one hand, 13% of the Casino’s clientele is composed of people whose mother tongue is English. Furthermore, it is not unreasonable to believe that clients who have another mother tongue have a greater tendency to express themselves in English rather than in French. This increases the proportion of clients with whom the security guard cannot communicate in French to more than 20%, a proportion that is far from negligible. If we also consider the Société des Casinos’ objectives of increasing its gaming offerings to tourist clients and its desire to offer them outstanding service, there is no reason to be surprised about the linguistic requirements for obtaining a position that places individuals in frequent contact with this clientele.

[45] The complainant argues that, in so doing, the Casino is denying her one of her fundamental rights and is relegating the right to work in French to second place in favour of [translation] “spinelessly catering to clients”. Suffice it to say that on this point, it is appropriate to quote the following excerpt from a decision rendered by the Office de la langue française in a case that challenged knowledge of English as a condition of eligibility for the positions of croupier, cashier, bartender and supervisor (table games supervisor) (Gauthier c. Société des casinos du Québec inc., file No. 46-249, August 14, 1996, pp. 9 and 10):

[…]

It is neither a question of establishing a principle whereby anyone in contact with the public would have to be bilingual, which would be a radical negation of the right to work in French, nor is it a question of allowing profitability to prevail over a fundamental right guaranteed by law; instead, it is a matter of recognizing that Casino de Montréal defined linguistic requirements adapted to the characteristics of various positions while taking into account the clientele it is seeking to attract as well as the nature of the roles. It is undeniable that the Casino has oriented its promotional efforts towards attracting clients from outside of Quebec, in accordance with a mandate established by the government, and the positions at issue, particularly the positions of croupier and table games supervisor, require an element of communication that is far from incidental.

Casino de Montréal is not exempt from respecting the Charter of the French Language simply because it is trying to attract American or Canadian clients. However, a state-owned enterprise engaged in commercial activities must play the game in the same way as its competitors, and this is particularly true if its competitors are located abroad. Earlier, in Sodisco,¹ the Office took into account the fact that Quebec companies serving clients outside of Quebec are competing with companies that are not subject to the Charter, and whose staff do not benefit from the protections that the Charter offers to Quebec workers. Similarly, Casino de Montréal is competing against numerous larger competitors against which it must carve out a distinct place, failing which the rationale for its existence would called into question.

1. Citation omitted.

[46] On the other hand, it should be recognized that the responsibilities of the security guard include a significant element of communication, as was the case with the positions analyzed in Gauthier. These duties go well beyond simply checking the physical premises or actual prevention measures during patrols. It is not contradictory to say that the security guard is the first point of contact for clients and is often required to intervene in many specific situations. On these occasions, the security guard must be able to have discussions with clients, understand what they are saying, explain guidelines or directives, respond to their objections, offer solutions, etc. The requirement of having a sufficient knowledge of English in order to successfully understand and be understood is obvious.

[47] As for determining the level of knowledge required, the Commission notes that the employer decided to entrust this determination to independent professionals. The assessment conducted by Ms. Desnoyers was not contradicted and no doubt has been cast on the value of the process she says she followed to make the determination: a review of the work descriptions, a site visit, and meetings with supervisors and incumbents of the positions concerned are sufficient to conclude that the exercise can be taken seriously. Her assessment, based on diverse and extensive experience, cannot be called into question.

[48] The same is true, I might add, of the actual assessment of the complainant’s abilities, based on a guided conversation and a presentation, conducted by a teacher of English as a second language who has since moved away from this practice but has conducted between 700 and 1,000 tests annually since 1996.

[49] And it is not the complainant’s statement asserting that she has sufficient knowledge of English, as evidenced by her previous experience working with a notary or as a security guard at a mine in Quebec’s Far North, which could change anything. Those responsibilities are different from the ones she would be required to assume at the Casino, and there is no information to indicate that those responsibilities required the same skill levels as those set and evaluated by the SEL [language assessment service].

[50] In conclusion, we are satisfied that the evidence establishes that requiring knowledge of English to obtain a job as a security guard at the Casino is far from unreasonable or unjustified. The determination of the level of knowledge required and the competency assessment conducted by the SEL do not reveal any arbitrariness or improvisation. Therefore, the employer was able to discharge its burden with regard to not hiring the complainant for the position sought because of insufficient knowledge of the English language.

47. A person who believes he has been aggrieved by a contravention of the first paragraph of section 46 may, before exercising the remedy provided for in that section, apply in writing to the Office québécois de la langue française for the matter to be submitted to a mediator to allow an exchange of views between the person and the employer and to foster a speedy resolution of the matter by way of a written agreement.

The parties are required to take part in all meetings to which they are called by the mediator; the mediator and the parties may use telephone or other communications equipment by which they may hear one another. The complainant may be represented by the complainant’s association of employees.

Mediation may not extend beyond 30 days after the date it was applied for. Mediation may be terminated before that time if, in the mediator’s opinion, his intervention is not expedient or desirable in view of the circumstances. The mediator shall notify the parties in writing.

The time for bringing the matter before the Administrative Labour Tribunal or an arbitrator is suspended during mediation. The time begins to run again on receipt by the complainant of a notice terminating the mediation or not later than 30 days after mediation is applied for.

1977, c. 5, s. 47; 1977, c. 41, s. 1; 2000, c. 57, s. 9; 2002, c. 28, s. 34; 2001, c. 26, s. 85; 2015, c. 15, s. 237.

Annotations

Hébert v. Sodema inc., 2010 QCCRT 92 (CanLII) [judgment available in French only]

[OUR TRANSLATION]

[…]

[24] Moreover, further to an amendment made in 2001, a provision was added to section 47 of the Charter of the French Language, which allows for a mediation process led by the Office de la langue française for any situation referred to in section 46, for a maximum period of 30 days. The last paragraph in section 47 provides for a suspension of the time in section 16 of the Labour Code during mediation as follows:

47. […]

Time.

The time for bringing the matter before the Commission des relations du travail or an arbitrator is suspended during mediation. The time begins to run again on receipt by the complainant of a notice terminating the mediation or not later than 30 days after mediation is applied for.

(Emphasis added.)

This provision is not challenged in this instance because this complaint is based on section 45. It nevertheless remains relevant for the purpose of the analysis concerning the limitation period.

[…]

[62] On the contrary, suspension of the limitation period provided in section 16 of the Labour Code in the case of mediation relating to a situation covered by section 46 of the Charter of the French Language indicates that this period is by definition not one that is non-suspendable. Remember that section 47 of the Charter of the French Language was amended for this purpose in 2001, following the reform of the Civil Code, and that it introduced a ground for suspension of time in addition to those listed in the chapter on suspension of the limitation period (articles 2904 to 2909 C.C.Q).

[…]

[65] To consider the time provided in section 16 of the Labour Code as being non-suspendable would go against the social and remedial nature of the provisions prohibiting certain practices. The rights protected in legislation specific to labour law are so important that the legislature made them provisions of public order, sometimes with a presumption, as in this instance, in favour of the employee. Placing a non-suspendable time limit on the exercise of these rights is incompatible with this objective.

47.1. Unless the parties consent thereto, nothing that is said or written in the course of mediation may be admitted as evidence before a court of justice or before a person or body of the administrative branch exercising adjudicative functions.

2000, c. 57, s. 9.

47.2. A mediator may not be compelled to disclose anything revealed to or learned by him in the exercise of his functions or produce a document prepared or obtained in the course of such exercise before a court of justice or before a person or body of the administrative branch exercising adjudicative functions.

Notwithstanding section 9 of the Act respecting Access to documents held by public bodies and the Protection of personal information (chapter A-2.1), no person may have access to a document contained in the mediation record.

2000, c. 57, s. 9.

48. Except as they regard the vested rights of employees and their associations, juridical acts, decisions and other documents not in conformity to this chapter are null. The use of a language other than that prescribed in this chapter shall not be considered a defect of form within the meaning of section 151 of the Labour Code (chapter C-27).

1977, c. 5, s. 48.

Annotations

Lagacé v. Union des employés de commerce local 504 (T.U.A.C., F.T.Q.), 1988 CanLII 802 (QC CA) [judgment available in French only]

[OUR TRANSLATION]

The respondent Union, which represents the employees of the impleaded company, submitted an application for certification to the Labour Commissioner in June 1984. Lina Lagacé, an employee of the impleaded party, intervened and challenged the application. The Commissioner rejected the challenge and issued the certificate of accreditation.

Lagacé filed an appeal before the Labour Court, and the judge of the Court, the respondent in this case, rejected all but one of the grounds raised: the Union does not exist since its by-laws and regulations are written in English only, contrary to the provisions of section 48 of the Charter of the French Language, which nullify its existence. He therefore rejected the application for certification submitted by a purported union that did not legally exist.

[…]

This brings me to the second question: Did the Labour Court judge correctly interpret and apply section 48 of the Charter of the French Language in this case?

[…]

Quebec workers are deprived of their rights to perform their work in French, to fully participate in the deliberative assemblies of their unions in French and to receive all communications from professional bodies, employee associations or companies to which they belong in French, if the regulations pertaining to them are not written in French.

A rule of procedure is obviously a communication addressed to company staff. If it is not written in French, it is null and void.

In addition, written communication between an association of employees and its members must be provided in French, with the exception of individual correspondence. Otherwise, this document does not comply with the chapter on the language of labour relations and is null and void under section 48; this an absolute nullity and cannot be considered as a defect of form.

How can one claim, in light of the provisions of Chapter II of the Charter cited above, that the regulations of an association of employees do not constitute a communication document between the association and its members, unless section 49 is given a restrictive meaning contrary to section 41 of the Interpretation Act:

41. Every provision of a statute, whether such provision be mandatory, prohibitive or penal, shall be deemed to have for its object the remedying of some evil or the promotion of some good.

Such statute shall receive such fair, large and liberal construction as will ensure the fulfilment of its object and the carrying out of its provisions, according to their true intent, meaning and spirit.

It follows that a union cannot exist and function in Quebec without its by-laws and regulations being available in French, since in that case, its by-laws and regulations would be null and void and the legislature has specified that this is not a defect of form under section 151 of the Code. Therefore, since the date on which the Charter came into force, such an association cannot be certified under the Labour Code.

With all due respect, the proposition is not lacking in intelligence or subtlety. The truth is, I am not certain that, if forced to adhere to the rule of unreasonableness, I would endorse the intervention of the Superior Court. However, it is important to remember that it is the correctness that is holding us back here. Instead of the subtle considerations of the Labour Code, which quietly depart from the texts, I prefer the exegetic rigour of the Superior Court:

[translation]

Chapter VI of the Charter of the French Language, on the language of labour relations, falls within Title I, “Status of the French Language”. It is an expression of how the National Assembly is “resolved” to make French “the normal and everyday language of work”, as stated in the preamble to the Charter. These different sections set out the obligation to use the official language for communications addressed to the staff, for employment or promotion offers (ss. 41 and 42), for collective agreements and their schedules (s. 43) and for arbitration awards relating to grievances (s. 44). It establishes a remedy for an employee who is dismissed because he or she speaks only French or speaks another language insufficiently, or against the requirement of knowing another language for a promotion or access to a job (ss. 45, 46 and 47). It also compels the association to use French to communicate with its members in general, with the use of another language being allowed for communications with an individual member (s. 49).

Section 48 states as follows:

Except as they regard the vested rights of employees and their associations, juridical acts, decisions and other documents not in conformity to this chapter are null. The use of a language other than that prescribed in this chapter shall not be considered a defect of form within the meaning of section 151 of the Labour Code.

This section, as it is positioned, can only apply to the “juridical acts, decisions and other documents” mentioned in this chapter. Indeed, if the legislature wanted to refer to every juridical act, decision or other document from the workplace, it would have been worded differently. The type of drafting used to describe certain situations in different sections limit them to the stated nullification, without prejudice to the sanctions provided generally in the chapter on offences and penalties, which are primarily penal in nature. Furthermore, the motive accepted by the judge here relies on the section that deals with the “written communications” between an association and its members. It is once again through interpretation and by describing the constitution of an association as its [translation] “first and main communication” that the judge connects the association to this chapter.

It is settled law that one should only resort to interpretation in the event of ambiguity. With all due respect for the contrary opinion, and regardless of how seductive and innovative the argument was, the Court cannot accept it. Section 49 of the Charter of the French Language only refers to communications and exchanges with members in the sense of correspondence, notices, posters, etc. We should, according to the well-known rule, give words their ordinary meaning in accordance with the purpose the text. Interpretation is required only in the event of ambiguity, which the undersigned cannot detect in the text at issue.

In fact, it is his opinion that through the interpretation he is proposing, the learned judge of the Labour Court added a provision to the text of section 49 in Chapter 6 of the Charter that the legislature did not include. With respect to the language of labour relations, the legislature simply wanted to make it “the normal and everyday language at work”, terms that clearly imply, to use a word that was popular, a clearly [translation] “step-by-step” approach and therefore can only be limited to what has been stipulated as the obligation to use the official language, while respecting the classic rules of interpretation.

Another argument could also be noted. In each of the situations covered, the language of labour relations referred to in the Charter concerns oral or written forms of communication in the context of exercising functions or juridical acts related to them and not everything that, by extension, can be connected to it, like associations of employees. The language of associations is not covered, neither in general nor in the context of associations of employees, with the noted exception of written communications. The Charter does not include any clause that requires keeping corporate minute books in the official language, even though several sections compel corporations to use the official language in their contracts, advertising and other documents.

It is therefore clear to the undersigned that the interpretation which only serves, in the present case, to reject the Union’s application for certification, cannot be adopted. [...]

That is why I propose that we dismiss the appeal with costs, leaving it to the employer to pay the expenses related to its intervention on appeal.

49. Every association of employees shall use the official language in written communications with its members. It may use the language of an individual member in its correspondence with him.

1977, c. 5, s. 49.

Annotations

Lagacé v. Union des employés de commerce local 504 (T.U.A.C., F.T.Q.), 1988 CanLII 802 (QC CA) [judgment available in French only]

[OUR TRANSLATION]

[…]

This brings me to the second question: Did the Labour Court judge correctly interpret and apply section 48 of the Charter of the French Language in this case?

[…]

A rule of procedure is obviously a communication addressed to company staff. If it is not written in French, it is null and void.

41. Every provision of a statute, whether such provision be mandatory, prohibitive or penal, shall be deemed to have for its object the remedying of some evil or the promotion of some good.

[translation]

Section 48 states as follows:

It is therefore clear to the undersigned that the interpretation which only serves, in the present case, to reject the Union’s application for certification, cannot be adopted. [...]

That is why I propose that we dismiss the appeal with costs, leaving it to the employer to pay the expenses related to its intervention on appeal.

Bolduc v. Union internationale des opérateurs ingénieurs, local 484 , 2011 QCCRT 577 (CanLII) [judgment available in French only]

[OUR TRANSLATION]

[8] Does Local 484 have an obligation to translate its financial statements into French in order to comply with section 47.1 of the Code [the Labour Code]? By refusing to do so, did it violate the Charter [Charter of the French Language]?

[…]

[16] Section 49 of the Charter stipulates that an association of employees must use French “in written communications with its members”, and it is important to remember that, according to Lagacé, this provision [translation] “only refers to communications and exchanges with members in the sense of correspondence, notices, posters, etc.” and that the by-laws and regulations of an association of employees are not “written communications with its members”.

[…]

Application to this case

[19] An employee’s right to obtain a free copy of the financial statements from his/her association certified in accordance with section 47.1 of the Code is one thing, and the right to obtain a copy of these statements in French is another. This right, if it exists, is not derived from the Code, but from the Charter.

[20] If an association of employees is not obligated, under the Charter, to provide a French copy of its by-laws and regulations to members, based on an application of the principles in Lagacé, then its position is even stronger in terms of having no obligation to do so for its financial statements, most notably because they are not written communications intended for its members. This is more an issue of disclosure rather than written communication.

[21] While it is true that members have the right to obtain a copy of the by-laws and regulations of their association of employees, this right does not appear to imply that they must receive these documents in French. From this perspective, the Commission does not see any basis for providing a different response to the question of disclosure of financial statements by an association to one of its members.

[22] Moreover, in accordance with the interpretation of the highest court in Quebec, the Commission concludes that the financial statements do not constitute “written communication with its members” within the meaning of section 49 of the Charter.

50. Sections 41 to 49 of this Act are deemed an integral part of every collective agreement. Any stipulation in the agreement contrary to any provision of this Act is absolutely null.

1977, c. 5, s. 50; 1999, c. 40, s. 45.

Chapter VII – The Language of Commerce and Business

51. Every inscription on a product, on its container or on its wrapping, or on a document or object supplied with it, including the directions for use and the warranty certificates, must be drafted in French. This rule applies also to menus and wine lists.

The French inscription may be accompanied with a translation or translations, but no inscription in another language may be given greater prominence than that in French.

1977, c. 5, s. 51; 1997, c. 24, s. 24.

ANNOTATIONS

156158 Canada inc. c. Attorney General of Quebec , 2017 QCCA 2055 (CanLII)

[106] The impugned provisions fall squarely within the ambit of the Court’s obiter dictum in Ford. On the one hand, ss. 51 and 52 C.F.L., when read with s. 89, allow the concurrent use of French and English on product packaging, as well as in catalogues, brochures, folders, commercial directories and similar publications. This complies with the first alternative proposed by the Supreme Court in Ford. The Supreme Court in Devine expressly said so regarding s. 52 C.F.L.

[…]

[112] The expression “visage linguistique” used in Ford refers to the language used in the visual landscape of commerce in Quebec. The C.F.L. regulates this “visage linguistique”, to ensure that the social reality of Quebec is portrayed in its “visage linguistique” and, ultimately, to protect the French language.

[113] The Appellants’ submissions on this issue must be rejected for the following reasons. First, when the Quebec government adopted the C.F.L. in 1977, it did so in response to its assessment of the vulnerable state of the French language in Quebec. This legislation does not aim to promote the multilingual image of Montreal, or, for that matter, “the multicultural heritage of Canadians”, as does s. 27 of the Canadian Charter. Rather, it aims “to see the quality and influence of the French language assured” in Quebec. The fact that the “visage linguistique” of Quebec now accurately reflects the predominance of French in Quebec indicates that the C.F.L. has met this objective.

[114] The Supreme Court did not limit the expression “visage linguistique” to outside signs. Indeed, the Appellants proposition that the concept of “visage linguistic” explained in Ford only refers to “those outside signs visible from a public thoroughfare” does not withstand scrutiny. The distinction between outside and indoor signs appears nowhere in Ford or Devine. In fact, one of the plaintiffs in Ford used and displayed (commercial signs) within and on the exterior of its premises in violation of s. 58 C.F.L. In Devine, the impugned provision, s. 51 C.F.L., related to writings on products, which are generally located indoors.

[…]

[120] The Appellants have failed to demonstrate that the provisions of ss. 51, 52 and 58 C.F.L. create a disadvantage, even when considering the more flexible test affirmed in Quebec (Attorney General) v. A. The challenged legislation does not prevent the Appellants from advertising with their desired form and content; it merely requires them to add a concurrent or “markedly predominant” French version should they wish to advertise in English. In addition, the Appellants did not provide any evidence of an additional economic burden that would result from this requirement. A disadvantage could potentially arise in the form of an additional economic burden placed on an Anglophone business required to advertise in two languages rather than one. If the business is thus obliged to incur additional expense for translation, website construction or printing, there might be in some cases, an additional burden created. Such burden might constitute discrimination for a small enterprise where the total revenue is such as to make the additional costs disproportionate and overly burdensome. Nevertheless, and as indicated above, no evidence of this nature was adduced by the Appellants before the trial court so that such an analysis of equality rights cannot be undertaken in this case.

4) Do the limitations set out in ss. 51, 52 and 58 C.F.L. violate the right to liberty guaranteed by s. 7 of the Canadian Charter and s. 1 of the Quebec Charter?

[121] Given that language is at the core of human identity, the Appellants claim that imposing a language-based restriction interferes with the sphere of personal autonomy protected by s. 7 of the Canadian Charter. In addition, they suggest that the right to liberty bolsters their previous argument regarding the distinction between outside/inside signs and visibility from a public thoroughfare in the context of freedom of expression.

[122] It is clear that corporations are not protected by s. 7. With respect to individuals, in B. (R.) v. Children's Aid Society of Metropolitan Toronto, La Forest J. explained that in any organized society, the liberty of individuals must be subject to some constraints for the common good:

The above-cited cases give us an important indication of the meaning of the concept of liberty. On the one hand, liberty does not mean unconstrained freedom […]. Freedom of the individual to do what he or she wishes must, in any organized society, be subjected to numerous constraints for the common good. The state undoubtedly has the right to impose many types of restraints on individual behaviour, and not all limitations will attract Charter scrutiny. […]

[123] The right to liberty is limited to protecting the basic human freedom to make inherently private choices free from state interference. As Justice La Forest stated in Godbout v. Longueuil (City):

66 The foregoing discussion serves simply to reiterate my general view that the right to liberty enshrined in s. 7 of the Charter protects within its ambit the right to an irreducible sphere of personal autonomy wherein individuals may make inherently private choices free from state interference. I must emphasize here that, as the tenor of my comments in B. (R.) should indicate, I do not by any means regard this sphere of autonomy as being so wide as to encompass any and all decisions that individuals might make in conducting their affairs. Indeed, such a view would run contrary to the basic idea, expressed both at the outset of these reasons and in my reasons in B. (R.), that individuals cannot, in any organized society, be guaranteed an unbridled freedom to do whatever they please. Moreover, I do not even consider that the sphere of autonomy includes within its scope every matter that might, however vaguely, be described as “private”. Rather, as I see it, the autonomy protected by the s. 7 right to liberty encompasses only those matters that can properly be characterized as fundamentally or inherently personal such that, by their very nature, they implicate basic choices going to the core of what it means to enjoy individual dignity and independence. As I have already explained, I took the view in B. (R.) that parental decisions respecting the medical care provided to their children fall within this narrow class of inherently personal matters. In my view, choosing where to establish one’s home is, likewise, a quintessentially private decision going to the very heart of personal or individual autonomy.

[124] Such reasoning has led the Supreme Court in reviewing the regulation of retail opening hours to decide that the right to liberty does not extend to “an unconstrained right to transact business whenever one wishes”. There exists a myriad of constraints on the manner in which business is conducted which are imposed by the legislature in its discretion in pursuit of what it considers the common good. For example, consumer protection laws regulate the conduct of business in various ways. One could extend the reasoning of the Supreme Court pertaining to store opening hours to conclude that the right to liberty does not extend to an unconstrained right to transact business in any manner one wishes. As such, the requirement that merchants publicize their business in French in addition to English is not a constraint on their liberty protected by the Canadian Charter.

[125] In view of the foregoing, ss. 51, 52 and 58 C.F.L. create no such restraint on the right to liberty of the individuals concerned. They may continue to use English to announce their wares and services.

5) Do the limitations set out in ss. 51, 52 and 58 C.F.L. violate the right to peaceful enjoyment of private property guaranteed by s. 6 of the Quebec Charter?

[126] The Appellants argue that the exception provided in s. 6 of the Quebec Charter —“except to the extent provided by law” — does not remedy the infringement of their right to the peaceful enjoyment of private property; otherwise the provision would be meaningless. This right would also bolster their previous argument regarding the distinction between outside/inside signs and public visibility in the context of freedom of expression.

[127] The wording of s. 6 of the Charter of Quebec is clear:

6. Every person has a right to the peaceful enjoyment and free disposition of his property, except to the extent provided by law.

6. Toute personne a droit à la jouissance paisible et à la libre disposition de ses biens, sauf dans la mesure prévue par la loi.

[128] I agree with the Respondent and the Superior Court judge. The impugned provisions do not affect the Appellants’ right to peaceful enjoyment of private property. The Appellants may still advertise their desired content in the language of their choice, so long as this is accompanied by a concurrent or “markedly predominant” French version.

[129] In any event, the right guaranteed by s. 6 of the Quebec Charter only applies to the extent provided by the law.The limitations on the language of commerce and business contained in the C.F.L. consist in prohibitions of a public nature which in the opinion of the legislature better the common good. As such, they fall within the ambit of the exception set out at s. 6 of the Quebec Charter.

N.B. – An application for leave to appeal has been filed with the Supreme Court of Canada

52. Catalogues, brochures, folders, commercial directories and any similar publications must be drawn up in French.

1977, c. 5, s. 52; 1983, c. 56, s. 11; 1993, c. 40, s. 15.

Annotations

Devine v. Quebec (Attorney General), [1988] 2 SCR 790, 1988 CanLII 20 (SCC)

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, 1974 CanLII 164 (SCC), [1975] 2 SCR 182, and on the opinion of Professor Hogg in Constitutional Law of Canada (2^nd 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 to reproduce here the references to the authorities in support of that conclusion which are fully set out in their opinions, including a long extract from the opinion of Professor Hogg. We adopt the following passages of the opinion of Professor Hogg as a statement of the law on this question, i.e., that:

...language is not an independent matter of legislation (or constitutional value); that there is therefore no single plenary power to enact laws in relation to language; and that the power to enact a law affecting language is divided between the two levels of government by reference to criteria other than the impact of law upon language. On this basis, 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.

...

...for constitutional purposes language is ancillary to the purpose for which it is used, and a language law is for constitutional purposes a law in relation to the institutions or activities to which the law applies.

[16] On this issue we are in agreement with the majority in the Court of Appeal. It is true, as the preamble of the Charter of the French Language indicates, that one of its objects is "to make of French the language of commerce and business" but that object necessarily involves the regulation of an aspect of commerce and business within the province, whatever the nature of the effect of such regulation may be. The purpose and effect of the challenged provisions of Chapter VII of the Charter of the French Language entitled "The Language of Commerce and Business" is to regulate an aspect of the manner in which commerce and business in the province may be carried on and as such they are in relation to such commerce and business. 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. As such, they fall within provincial legislative jurisdiction under the Constitution Act, 1867.

[…]

III – Are Any or All of ss. 52 (Formerly s. 53), 57, 58, 59, 60, and 61 of the Charter of the French Language Protected From the Application of ss. 2(b) and 15 of the Canadian Charter of Rights and Freedoms by a Valid and Applicable Override Provision Enacted in Conformity with s. 33 of the Canadian Charter?

[21] For the reasons given in Ford, ss. 52 (formerly s. 53) and 58 of the Charter of the French Language are 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, enacted pursuant to s. 33 of the Canadian Charter, in the form of s. 52 of An Act to amend the Charter of the French Language, S.Q. 1983, c. 56. However, it was held in Ford that s. 58 infringes the guarantee of freedom of expression in s. 3 of the Quebec Charter of Human Rights and Freedoms, infringes the guarantee against discrimination based on language in s. 10 of the Quebec Charter, is not saved from its s. 3 infringement by considerations under s. 9.1, and is thus of no force or effect. In this case, s. 52 of the Charter of the French Language is subject to scrutiny only under ss. 3, 9.1 and 10 of the Quebec Charter.

[…]

IV – Whether the Freedom of Expression Guaranteed by s. 2(b) of the Canadian Charter of Rights and Freedoms and 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

[23] 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 of Rights and Freedoms, 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 s. 52 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. As was said by Dickson J. (as he then was) in R. v. Big M Drug Mart Ltd., 1985 CanLII 69 (SCC), [1985] 1 SCR 295, at p. 336, freedom consists in an absence of compulsion as well as an absence of restraint. This Court is thus of the view that ss. 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 of Rights and Freedoms. These sections and s. 52 similarly infringe the freedom of expression guaranteed by s. 3 of the Quebec Charter.

V – Whether the Limit Imposed on Freedom of Expression by the Challenged Provisions of the Charter of the French Language is Justified Under s. 1 of the Canadian Charter of Rights and Freedoms and s. 9.1 of the Quebec Charter of Human Rights and Freedoms

[24] […]For the reasons given in that case [Ford] the requirement of either joint or predominant use is justified under s. 9.1 and s. 1. […]

[27] The remaining sections, 52 and 57, if they are preserved, neither cause unintended results in the overall legislative scheme, nor conflict with s. 2(b) of the Canadian Charter or s. 3 of the Quebec Charter as interpreted in Ford. Their subsistence does not cause unintended results because they are not dependent on s. 58 for their meaning, as were ss. 59, 60 and 61. Similarly, their continued existence does not infringe either Charter because, while ss. 52 and 57 provide for the publication of such items as catalogues, brochures, order forms and invoices in French, they do not require the exclusive use of French. Section 89 makes it clear that where exclusive use of French is not explicitly required by the Act, the official language and another language may be used together. Following the reasons in Ford, permitting joint use passes the scrutiny required by s. 1 of the Canadian Charter and s. 9.1 of the Quebec Charter. The rational connection between protecting the French language and assuring that the reality of Quebec is communicated through the "visage linguistique" by requiring signs to be in French was there established. The same logic applies to communication through such items as brochures, catalogues, order forms and invoices, and the rational connection is again demonstrated. 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. It now remains to discuss whether ss. 52 and 57 are contrary to s. 10 of the Quebec Charter, and whether s. 57 is contrary to ss. 15 and 1 of the Canadian Charter.

VI – Do the Challenged Provisions 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 or, Where Applicable, the Guarantee of Equality in s. 15 of the Canadian Charter of Human Rights and Freedoms?

[28] As was emphasized in Ford, to determine whether a distinction is one based on a prohibited ground within the meaning of s. 10 of the Quebec Charter, one must consider the effect of the distinction and not merely what appears on its face. If the distinction is based on a prohibited ground, it will only constitute discrimination within the meaning of s. 10 if it has the effect of nullifying or impairing the right to full and equal recognition and exercise of a human right or freedom recognized by the Quebec Charter of Human Rights and Freedoms.

[29] The provisions at issue, ss. 52 and 57, on their face apply to everyone regardless of language of use. While their effect is less severe than the requirement of the exclusive use of French under s. 58, they nevertheless impinge differentially on different classes of persons according to their language of use. Francophones are not required to use any language other than their language of use while anglophones and other non-francophones are required to use French, although they may also use another language. This creates a distinction between such persons based on language of use, which is a prohibited ground under s. 10 of the Quebec Charter.

[30] […] Here, sections 52 and 57 do create a distinction based on language of use but do not have the effect of impairing or nullifying rights guaranteed under s. 3. They thus conform to the Quebec Charter. […]

VII – Answers to the Constitutional Questions and Disposition of Appeal

[33] For these reasons the appeal is allowed in part and the constitutional questions are answered as follows:

[…]

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?

156158 Canada inc. c. Attorney General of Quebec , 2017 QCCA 2055 (CanLII)

[65] Sections 52 and 57 C.F.L., (which remain essentially the same today) both permit the joint use of French and another language. Together, ss. 52 and 89 allow businesses to draw up catalogues, brochures and any similar publications in French and in another language while ss. 57 and 89 does the same for employment application forms, order forms, invoices and receipts.

[66] Referring to its reasons in Ford, the Supreme Court concluded that by compelling the use of French, ss. 52 and 57 C.F.L. infringed the parties’ freedom of expression. But, as expressed in obiter in Ford, the Court held that requiring joint use was justified under s. 1 of the Canadian Charter and s. 9.1 of the Quebec Charter:

It remains to be considered whether the limit imposed on freedom of expression by the challenged provisions of the Charter of the French Language, which require the use of French while at the same time permitting the use of another language, is justified under s. 1 of the Canadian Charter of Rights and Freedoms and s. 9.1 of the Quebec Charter. The section 1 and s. 9.1 materials submitted by the Attorney General of Quebec in justification of the challenged provisions were considered in Ford. For the reasons there stated, legislation requiring the exclusive as opposed to the predominant use of French is not justified under s. 1 or s. 9.1. Section 58 of the Charter of the French Language, as was shown in Ford, does require exclusive use of French and therefore does not survive s. 9.1 scrutiny. For the reasons given in that case, the requirement of either joint or predominant use is justified under s. 9.1 and s. 1.

[…]

[115] Unilingual English websites, which are the object of certain of the offences charged, were not discussed in Ford or Devine as they did not arise from the facts. However, I do not see any valid differentiation for present purposes in 2017 between a commercial brochure printed on paper and one existing in electronic form. If the publications on a website aim to conduct or promote business in the territory of Quebec, then they are part of the “visage linguistique” of Quebec and thus subject to s. 52 C.F.L.

[…]

4) Do the limitations set out in ss. 51, 52 and 58 C.F.L. violate the right to liberty guaranteed by s. 7 of the Canadian Charter and s. 1 of the Quebec Charter?

5) Do the limitations set out in ss. 51, 52 and 58 C.F.L. violate the right to peaceful enjoyment of private property guaranteed by s. 6 of the Quebec Charter?

[127] The wording of s. 6 of the Charter of Quebec is clear:

6. Every person has a right to the peaceful enjoyment and free disposition of his property, except to the extent provided by law.

6. Toute personne a droit à la jouissance paisible et à la libre disposition de ses biens, sauf dans la mesure prévue par la loi.

N.B. – An application for leave to appeal has been filed with the Supreme Court of Canada

Québec (Procureur général) v. Hyperinfo Canada Inc., 2001 CanLII 16493 (QC CQ) [judgment available in French only]

[OUR TRANSLATION]

Language of Commerce

[17] The defendant’s representative claims that the exception in section 11 of the Regulation respecting the language of commerce and business (Regulation) applies to the Internet medium. To facilitate proper understanding, the text of section 11 of this Regulation is reproduced here.

11. Catalogues, brochures, folders, commercial directories and any similar publications concerning a cultural or educational product within the meaning of section 2, concerning a cultural or educational activity such as a show, recital, speech, lecture, course, seminar or radio or television program or promoting a news medium may be exclusively in a language other than French provided that the content of the cultural or educational product is in that other language, the activity is held in that other language or the news medium publishes or broadcasts in that other language, as the case may be.

[18] The scope of application of section 11 of the Regulation is limited to cultural or educational activities. Therefore, similar catalogues, brochures, folders and other commercial publications made available via the Internet may be produced in a language other than French if the publications are related to a cultural or educational activity.

[19] The legal regime established by sections 52 and 205 of the Charter and sections 11 and 13 of the Regulation give rise to a due diligence defence. The possibility of establishing that a commercial publication can be produced by a company established exclusively outside Quebec or based on an exemption allows me to determine that the offence provided in sections 52 and 205 of the Charter is one of strict liability. A defendant who wants to benefit from an exception must prove, on a balance of probabilities, that all the conditions for applying the exemption have been fulfilled. In this case, the defence limited itself to claiming that the exemption applies. The onus was on the defendant to prove that the content of the directories and files she would be selling were related to the activities described in section 11 of the Regulation. In the absence of such evidence, the court cannot infer from the titles in the index of services that the activity is cultural or educational. To illustrate my point, I would simply mention that the defendant’s representative was unable to explain how a file about establishing a bed and breakfast or another related to advertising via stickers could qualify as an activity under section 11 of the Regulation.

Product availability

[20] Mr. Sunatori testified that he had bought the reproduction rights for the information compiled primarily in the United States. The defendant’s clientele is mainly American, and only a few clients living in Quebec have done business with the defendant’s site. The defence’s claim is that the exemption provided in subsection 3(5) of the Regulation must be applicable:

3. An inscription on a product may be exclusively in a language other than French in the following cases:

[...]

5. the product is from outside Québec and is in limited use in Québec and no equivalent substitute presented in French is available in Québec;

[21] This argument cannot be accepted by the Court. Section 3 of the Regulation refers to the labelling of products. The offence referred to in section 52 of the Act does not concern the content of files which can be named and written in a language other than French. Section 52 of the Act applies to commercial advertising that is disseminated or printed about a product. An inscription within the meaning of section 3 of the Regulation does not qualify as advertising for the purpose of promoting the sale of a product.

[22] In the event that the Court is wrong in its interpretation of section 3 of the Regulation, the defence would still not have established, on a balance of probabilities, that there is no equivalent substitute presented in French.

Warning

[23] Mr. Sunatori explained that he reopened the defendant’s site after he came up with the idea of restricting access to it. He added a warning to the webpage, informing Quebec residents that they did not have access to the Hyperinfo.ca website. This warning reads as follows:

[translation]

The products and services on this website are not available to Quebec residents due to “the Charter of the French Language”.

[24] In addition, from a technical standpoint, he blocked user registration for sales purposes for anyone with an email address that included the “qc” suffix.

[25] In his argument, Mr. Sunatori maintains that the defendant is no longer subject to the Act by virtue of the warning. He argues that it cannot be held liable because some Quebec residents would ignore the warning.

Availability

[26] From a technical standpoint, the mechanism that allows for the recognition of addresses that include the “qc” suffix does not prevent viewing the webpage and the commercial advertising on it. By Mr. Sunatori’s own admission, this mechanism is not completely foolproof. Viewing is still possible if the user is familiar with using search engines in English. This mechanism limits the user’s ability to register as a client of the website, but it has no effect on the defendant’s obligations under the law.

Exemption from the Act

[27] Does the addition of this warning allow the defendant to be exempted from the application of the Act? To answer this question, it is important to determine whether section 52 of the Act is a provision of public order. A legislative provision can be one of public order as a result of an express stipulation that unequivocally reflects the intention of the legislature. In the Act, there is no express provision declaring the public order nature of section 52. In the absence of such specification, the text of the provision should be analyzed in order to identify clues that would reveal the intention of the legislature. The first clue is certainly the use of the imperative form. The use of the term, “shall” in drafting a legislative provision generally indicates the imperative nature of the provision. P.A. Côté, in his textbook The Interpretation of Legislation in Canada, wrote the following on this subject:

The imperative nature of an enactment is often indicated by “shall” or must”. The Interpretation Acts set forth that “shall” is to be construed as imperative (Quebec, s. 51, and federal, s. 28).

[28] A simple rereading of section 52 of the Charter would suffice to establish that there is a presumption that is imperative in nature. In addition to the use of the imperative form, the legislature’s express intention to sanction non-compliance with a provision may reflect the public order nature of the Act. This prohibitive form that is penal in nature is found in section 205 of the Act. I have therefore concluded that section 52 of the Charter has the attributes that we associate with a public order provision. I cannot overlook the fact that well-established case law confers public order status on the Charter. Justice Paule Lafontaine stressed the public order nature of the Act in NA Credit Services Inc. and in her consideration of section 55:

[translation]

WHEREAS there is a reason to conclude that section 55 of the Charter, cited above, is a provision of public order, given the imperative nature confirmed by the penal sanction stipulated in subsection 205(5), and despite the fact that the Act does not state it explicitly [...] :

[29] In conclusion, I am satisfied that section 52 of the Act is a public order provision within the meaning of sections 9 of the Civil Code and 41.4 of the Interpretation Act (R.S.Q. c. I-16).

Annotations

Len-Jay inc. v. J.R.S. Transport inc., 2001 CarswellQue 2105, [2001] R.R.A. 799, J.E. 2001-1649, REJB 2001-25774 (QC SC) [hyperlink not available] [judgment available in French only]

[OUR TRANSLATION]

[15] With respect to the action in warranty and exclusion clauses invoked by MARITIME, J.R.S. claims that they cannot be enforced against it, given that the contract was written in English only, contrary to the requirement set out in section 55 of the Charter of the French Language. [...]

[…]

4.4.1 Language of the contract

[28] It is trite law that an insurance contract is a contract of adhesion. Section 55 of the CFL establishes a clear obligation that a contract of adhesion must be drawn up in French unless otherwise agreed by the parties.

[29] However, contrary to the stipulations in the other provisions of this act, the legislature did not prescribe any sanction in the event of non-compliance with this obligation. Just like other courts, it is the Court’s opinion that failure to draw up the types of contracts mentioned in section 55 of the CFL in French does not automatically result in their nullity.

[30] In this case, there is no evidence to show that the insured was at a disadvantage because the contract was not written in French. For example, it was not established that the defendant’s knowledge of English was so poor that the text was incomprehensible to it. It was also not proven that the defendant had expressed any objection to having the text of the contract written in English or that it had asked to obtain a text in French at any point in time.

[31] Not only is evidence relating to these elements completely lacking, but there are reasons to believe that the defendant has always had sufficient knowledge of English and that it was satisfied with a text written in English only. In fact, the first insurance contract concluded in 1994 was consistently renewed in English every year until 1998, without any complaint from J.R.S. In addition, it has been proven that, over the course of these years, J.R.S was exclusively responsible for Canada-U.S.A transportation. No doubt, during the ordinary course of business, English was appropriate, as noted by the customs documents that accompanied the transportation of Len-Jay goods.

[32] Consequently, the Court does not accept the argument of unenforceability raised by J.R.S and hereby declares that all the clauses of the DG-1 insurance contract can be enforced against J.R.S.

Parent v. British Aviation Insurance Group (Canada) Ltd., 1999 CanLII 10881 (QC SC) [judgment available in French only]

[OUR TRANSLATION]

Questions of Law

[20] This case raises the following questions:

1. Since the policy was written entirely in English, contrary to the requirement under section 55 of the Charter of the French Language, is clause 30 enforceable against Mr. Parent?

[…]

Since the policy was written entirely in English, contrary to the requirement under section 55 of the Charter of the French Language, is clause 30 enforceable against Mr. Parent?

[…]

[22] It is well established that an insurance contract is a contract of adhesion.

[23] Section 1379 of the C.C.Q, a new provision, defines what a contract of adhesion is. It confirms the existing doctrine.

Sec. 1379. A contract of adhesion is a contract in which the essential stipulations were imposed or drawn up by one of the parties, on his behalf or upon his instructions, and were not negotiable.

Any contract that is not a contract of adhesion is a contract by mutual agreement.

[24] It is therefore clear that the policy issued to Mr. Parent, written entirely in English, fails to respect section 55 of the Charter.

[25] No sanction, however, is stipulated in the Charter for a violation of section 55, unlike, for example, sections 48 and 50 concerning the language of labour relations. Indeed, the Charter specifically states that acts performed in violation of those provisions are null and void.

[26], In the case of Nationwide Advertising Service Inc. v. David, Mr. Justice André Forget refused to cancel a contract which violated section 55 of the Charter.

[27] Similarly, Madam Justice France Thibault wrote the following on this subject:

[translation]

There is no doubt that drawing up the contract in English violates this legal obligation. This does not necessarily imply that the sanction for this violation is the invalidity of a clause in the contract. In fact, the legislature did not conclude that stipulations contrary to section 55 of the Charter would be null and void, as it prescribed in other provisions of the Act.

In that decision, it should be noted that the evidence did not establish the policyholder’s level of knowledge of English. In addition, the application essentially provided information on the content of the contested clause.

[28] The Court is also of the opinion that a violation of section 55 of the Charter does not render the contract null and void since the legislature did not provide for such a consequence. This is not what Mr. Parent is arguing.

[29] He submits, rather, that clause 30 of the policy cannot be enforced against him because the contract is written in English. This clause reads as follows:

[30] We will not pay, under any of the Coverages, for any loss, damage or liability, if, at the time of the occurrence, a pilot other than an approved pilot shown on the Policy Data Page, is pilot in command of the aircraft: nor will we pay if the pilot in command of the aircraft does not hold a valid current pilot's licence (sic) with all aircraft type, instrument and night flying ratings required by law for the flight. However the following are permitted:

(a) A pilot employed by a Transport Canada approved maintenance organization may act as pilot in command of the aircraft for the purpose of test flying the aircraft after maintenance work has been performed on the aircraft.

(b) While the aircraft is not in flight, the aircraft may be started and operated by a person who is competent to control the aircraft and qualified to do so.

(c) A pilot providing an approved pilot, as shown on the Policy Data Page, with upgrading flight instruction may act as pilot in command of the aircraft. “Upgrading flight instruction” means flight instruction, given strictly in accordance with alt applicable Transport Canada regulations, for the purpose of upgrading a valid powered aircraft pilot license held by the pilot shown as approved on the Policy Data Page, and includes instruction or examination for an Instrument Rating. Float Endorsement, Aircraft Type Endorsement and Multi-Engine Endorsement.

(Emphasis added)

The Charter has been in effect in Quebec since 1977. The requirement related to ensuring that a contract of adhesion, and therefore an insurance policy, is written in French is not new.

[30] The Insurer can only be released from this obligation if it is the express wish of the parties. The evidence clearly established that Mr. Parent has no knowledge of English. He cannot speak it or read it. As soon as he received the first policy in September 1993, he requested a French version of the document. The broker, Lucie Giroux, replied that a French version of the policy did not exist.

[31] The evidence also revealed that the Insurer only agreed to cover the risk before a pilot obtained a licence endorsement authorizing the pilot to fly a seaplane. However, it required the pilot to be in training.

[32] The only other insurer in the aviation sector, for Quebec, does not cover this risk. In any case, it also does not have any policies written in French.

[33] It should also be noted that in 1993-1994, the Insurer had a business volume of 40 million premiums in Canada. Of this amount, the Quebec market represented a significant portion.

[34] In Précis des assurances terrestres, Didier Lluelles expresses the opinion that an insurance contract of adhesion that violates section 55 of the Charter should not be declared null and void for this reason. Nevertheless, this violation should have an impact at the normative level of the contract: for example, an exclusion clause should not be enforceable against the policyholder.

[35] He likens the fate of an unissued policy to that of a policy issued in a language other than the one provided in the imperative legislative text.

[36] That is also the solution adopted in France by the Court of Cassation, which declared an exclusion clause to be unenforceable against the insured because it was part of a policy written in a language other than French, contrary to the provisions of French law.

[37] Section 2400 of the C.C.Q. requires the insurer to issue both a copy of the policy and the application.

Sec. 2400. In non-marine insurance, the insurer is bound to deliver the policy to the client, as well as a copy of any application in writing made by or on behalf of the client.

In case of inconsistency between the policy and the application, the latter prevails unless the insurer has indicated in writing to the client, in a separate document, the particulars of the inconsistency.

[38] Meanwhile, section 2403 of the C.C.Q. states that the insurer may not invoke conditions or representations not stated in writing in the contract.

Sec. 2403. Subject to the special provisions on marine insurance, the insurer may not invoke conditions or representations not stated in writing in the contract.

[39] The Court is of the opinion that when an insurance policy written in English is given to a unilingual Francophone insured who has not expressly consented to it, it cannot be considered to have been delivered within the meaning of section 2400 of the C.C.Q. Therefore, the Insurer cannot enforce the exclusion clause (clause 30) against Mr. Parent because it constitutes a clause extrinsic to the contract.

[40] Since the legislature provided that contracts of adhesion must be written in French in Quebec, the Insurer’s act of issuing the contract must also respect these provisions in order to have been validly executed within the meaning of section 2400 of the C.C.Q.

[41] Considering that the Insurer cannot enforce the exclusion clause (s. 30) contained in the policy written in English, only the conditions provided for in the application remain.

Nationwide Advertising Service Inc. v. David, 1988 CarswellQue 105, 24 C.C.E.L. 152, J.E. 88-1336, EYB 1988-83453 (QC SC) [hyperlink not available] [judgment available in French only]

[OUR TRANSLATION]

II. Parties’ submissions

[8] The applicant submits that Ms. David expressly violated the non-compete clause in her contract. In addition, she failed in her fiduciary duties and duties of confidentiality imposed by case law on company directors and senior management. According to counsel for the applicant, Ms. David works for a competitor, provided information to her new employer, and directly or indirectly solicited Nationwide clients. For its part, Revista, the respondent, allegedly induced a third party to break a contract, and in addition, the findings against it would be justified to render the order against Ms. David effective.

[9] The defence submitted three arguments:

(1) — The contract is invalid because it is written in English, contrary to the provisions of the Charter of the French Language, R.S.Q. 1977, c. C-11. [...]

[…]

A. Violation of the Charter of the French Language

[11] Section 55 of this Charter reads as follows: [...]

[12] At first glance, the contract signed by Ms. David (R-1) appears to be a printed document on which the parties filled out the blank spaces.

[13] Considering the violation of this provision of the Charter, sections 13 and 14 of the Civil Code would render this agreement null and void:

Sec. 13 No one may by private agreement validly contravene the laws of public order or good morals.

Sec. 14: Prohibitive laws entail nullity, even if nullity is not pronounced therein.

[14] In support of his arguments, counsel for the applicant refers to the following judgments of the Supreme Court:

[15] Brown v. Moore (1902), 32 S.C.R. 93, p. 97:

It is settled law that contracts entered into in the face of statutory prohibition are void and the prohibition of sales of liquor without license provided by the statute in question has, therefore, the effect of rendering the contract here of no effect.

[16] Commercial Life Assurance Co. of Canada v. Drever, [1948] S.C.R. 306, p. 311, [1948] 1 D.L.R. 241:

(Hon. Judge Locke):

I think the rule of law applicable to this state of facts is that stated in the maxim ex turpi causa non oritur actio. In Bartlett v. Vinor, Holt C.J. said in part:

Every contract made in or about any matter or thing which is prohibited and made unlawful by any statute is a void contract, though the statute itself doth not mention that it shall be so, but only inflicts a penalty on the offender, because a penalty implies a prohibition, though there are no prohibitory words.

[17] A well-known judgment by the Supreme Court can be added to these decisions: Pauzé v. Gauvin, [1954] S.C.R. 15. In this judgment, a majority of the Supreme Court held that an engineer who had prepared construction plans and specifications was not entitled to receive payment, considering the encroachment on the domain reserved to architects.

[18] Without deciding this issue, since there is no need to do so, the Court is very reluctant to accept this argument under the present circumstances.

[19] First, there is no evidence that the parties did not have the “express wish” to use another language, even though the contract does not include any clause expressing this desire.

[20] Second, the legislature only provided a penal sanction for all violations of s. 55, by virtue of a general provision (s. 205). In other chapters, however, most notably Chapter VI on the language of labour relations, the legislature expressly provided for the nullity of acts performed in violation of these sections (ss. 48 and 50). If every violation of the Act renders the related action null and void, the legislature’s work with respect to sections 48 and 50 would have been pointless. Yet, “the law is ever commanding”, Interpretation Act, RSQ. 1977, c. 1-16. Since the legislature expressly provided for nullity for certain violations and provided only a penal sanction for others, how can an intention that is at least implicit not be recognized?

[21] Third, the respondent’s argument is repugnant to the good faith that must govern the performance of contracts. Ms. David, who is perfectly bilingual according to the evidence, signed a contract in 1981, benefited from it for seven years and, as soon as she became dissatisfied with a clause, demanded the nullity of the contract. If the contract were null and void, it should have been null and void ab initio, whereas the contract was performed by the parties for seven years.

[22] Lastly, recent case law has been reluctant to pronounce nullity in similar matters. To start, we can cite the decision of the Court of Appeal in Girard c. Véronneau, [1980] C.A. 534, 17 R.P.R. 103 (Que.), which put an end to a controversy in the construction sector. It is known that the Act respecting building contractors vocational qualifications, R.S.Q. 1977, c. Q-1, requires that a contractor licence be obtained to perform certain work. Therefore, certain decisions denied contractors without such a licence the right to claim the costs for their work and register a lien. A majority of the Court of Appeal recognized the validity of the contract despite the violation of the Act. The Honourable Chief Justice Crête concluded, at p. 537, that this Act

[translation]

[…] is one of public interest; it is not necessarily a law of public order such that its violation by the respondent would lead to the absolute nullity of the contract with the appellant […].

[23] the Honourable Justice Bernier, concurring, stated that the legislature can expressly or implicitly deviate from section 14, at p. 583:

[translation]

The rule in section 14 C.C. is not an absolute rule which does not allow for exceptions. Nothing prevents the Legislature from adopting prohibitive provisions for which the sanctions would only be penal. It is clear that it could make specific provisions. It can also do so tacitly, by inference. The provisions of an act, like the clauses of a contract (sec. 1018 C.C) must be construed by one another, ascribing to each provision the meaning which results from the whole act: that is the principle of the interdependence of legislative provisions. So such an exception to the rule in article 14 C.C. can emerge from the context, from all the provisions of the Act concerned.

[24] In addition, even when the legislature has expressly provided for nullity, as in the chapter on the language of labour relations, the Court of Appeal has refused to extend the scope of the provision to acts that were not specifically provided for. In Syndicat Canadien de la Fonction publique c. Centre d’Accueil Miriam [1984] C.A. 104, a majority of the Court of Appeal refused to invalidate a termination notice in English. In a very recent decision, Lagacé c. Union des employés de commerce, local 504 (J.E. 88-963), the Court of Appeal recognized the validity of the union’s certification, even though its by-laws and regulations were written only in English.

[25] Lastly, two decisions rendered by the Provincial Court refused to pronounce an act null and void, despite the allegation of non-compliance with s. 55 of the Charter, Bleau c. Compagnie d’Assurance Halifax, [1983] C.P. 177, Galardo c. Walmsley, 500-02-024285-806 (C.P.M.).

[26] Even though there is no doubt that this question remains open, the Court, for the purpose of the interlocutory injunction, held that the applicant had established a prima facie right to the validity of the contract.

Wheelhouse v. Crête , 2017 QCCQ 4241 (CanLII) [judgment available in French only]

[OUR TRANSLATION]

[52] With respect to the language of the contract, section 55 of the Charter of the French Language [C.F.L.] provides that

55 Contracts pre-determined by one party, contracts containing printed standard clauses, and the related documents, must be drawn up in French. They may be drawn up in another language as well at the express wish of the parties.

[53] The contract between the parties, Exhibit P-2, undoubtedly contains printed standard clauses.

[54] Considering the testimony of the applicant and the fact that he wrote on the first page of the contract that his preferred language was French, it is clear that the use of a language other than French does not reflect the express wish of the parties.

[55] However, contrary to what it stipulated in the other provisions of this act, the legislature did not prescribe any sanction in the event of non-compliance with this obligation. Failure to draw up the types of contracts mentioned in section 55 of the C.F.L. in French does not automatically entail their nullity.

Slush Puppie Canada inc. (Slusph Puppie Montréal) v. 9135-6436 Québec inc. (Marché Champenois), 2007 QCCQ 827 (CanLII) [judgment available in French only]

[OUR TRANSLATION]

The language of the contract

[20] The defendant, who is Francophone but of foreign origin, also claims that the contract was in English because the representative did not have a contract written in French. The meeting lasted roughly 15 minutes, and the representative asked him to sign the agreement, without providing any explanations. That was why he was unaware that he was prohibited from purchasing from another supplier.

[21] Section 55 of the Charter of the French Language (“C.F.L”) establishes a clear obligation that a contract of adhesion, such as the contract referred to in the present case, must be drawn up in French unless the parties expressly provide otherwise.

[22] However, contrary to what it stipulated in the other provisions of this act, the legislature did not prescribe any sanction in the event of non-compliance with this obligation. Failure to draw up the types of contracts mentioned in section 55 of the C.F.L. in French does not automatically entail their nullity.

[23] In this case, there is no evidence to show that the defendant was placed at a disadvantage because the contract was not in French. The defendant did not establish that he did not understand English such that the text was incomprehensible to him. It was also not proven that the defendant had expressed any objection to having the contract written in English or that he had asked to obtain a text in French at any point in time.

[24] This ground, relating to the language of the contract, cannot be accepted under the circumstances described above.

56. If the documents referred to in section 51 are required by any Act, order in council or government regulation, they may be excepted from the rule enunciated in that section, provided that the languages in which they are drafted are the subject of a federal-provincial, interprovincial or international agreement.

1977, c. 5, s. 56.

57. Application forms for employment, order forms, invoices, receipts and quittances shall be drawn up in French.

1977, c. 5, s. 57.

Annotations

Devine v. Quebec (Attorney General), [1988] 2 SCR 790, 1988 CanLII 20 (SCC)

II – Whether the Challenged Provisions Are Ultra Vires the Quebec Legislature

[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, 1974 CanLII 164 (SCC), [1975] 2 SCR 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 to reproduce here the references to the authorities in support of that conclusion which are fully set out in their opinions, including a long extract from the opinion of Professor Hogg. We adopt the following passages of the opinion of Professor Hogg as a statement of the law on this question, i.e., that:

...

[…]

[16] On this issue we are in agreement with the majority in the Court of Appeal. It is true, as the preamble of the Charter of the French Language indicates, that one of its objects is "to make of French the language of ... commerce and business" but that object necessarily involves the regulation of an aspect of commerce and business within the province, whatever the nature of the effect of such regulation may be. The purpose and effect of the challenged provisions of Chapter VII of the Charter of the French Language entitled "The Language of Commerce and Business" is to regulate an aspect of the manner in which commerce and business in the province may be carried on and as such they are in relation to such commerce and business. 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. As such, they fall within provincial legislative jurisdiction under the Constitution Act, 1867.

[…]

[21] For the reasons given in Ford, ss. 52 (formerly s. 53) and 58 of the Charter of the French Language are 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, enacted pursuant to s. 33 of the Canadian Charter, in the form of s. 52 of An Act to amend the Charter of the French Language, S.Q. 1983, c. 56. However, it was held in Ford that s. 58 infringes the guarantee of freedom of expression in s. 3 of the Quebec Charter of Human Rights and Freedoms, infringes the guarantee against discrimination based on language in s. 10 of the Quebec Charter, is not saved from its s. 3 infringement by considerations under s. 9.1, and is thus of no force or effect. In this case, s. 52 of the Charter of the French Language is subject to scrutiny only under ss. 3, 9.1 and 10 of the Quebec Charter.

[22] Sections 57, 59, 60 and 61 of the Charter of the French Language and the Regulation respecting the language of commerce and business, which require the use of French but permit the use of another language at the same time, are no longer 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 enacted pursuant to s. 33 of the Canadian Charter, since s. 214 of the Charter of the French Language ceased to have effect on June 23, 1987. These provisions are, of course, also subject to ss. 3 and 10 of the Quebec Charter of Human Rights and Freedoms.

[24] […] For the reasons given in that case [Ford] the requirement of either joint or predominant use is justified under s. 9.1 and s. 1. […]

[…]

[31] This leaves the question as to whether s. 57 is contrary to ss. 15 and 1 of the Canadian Charter. Section 15 of the Canadian Charter was invoked by the appellant only before this Court, although the Attorney General of Quebec did agree that constitutional questions be stated and that s. 15 should be in issue. Nevertheless, we do not have the benefit of reasons from the Court of Appeal or from the Superior Court interpreting the application of s. 15 to s. 57. Nor has this Court yet rendered any judgment interpreting the meaning of s. 15. It is not necessary in this case to discuss whether s. 57 is prima facie in breach of s. 15. We have already determined that it is prima facie in breach of s. 2(b). The only question that remains to be answered is whether the application of s. 1 would be any different if there were a prima facie breach of s. 15 in this case. More specifically, the question becomes whether the proportionality test laid down in R. v. Oakes, 1986 CanLII 46 (SCC), [1986] 1 SCR 103, and restated by Dickson C.J. in R. v. Edwards Books and Art Ltd., 1986 CanLII 12 (SCC), [1986] 2 SCR 713, would yield a different result in this case if the prima facie breach in issue were a breach of the rights guaranteed under s. 15. We have already determined that the requirement of joint use of French is rationally connected to the legislature's pressing and substantial concern to ensure that the "visage linguistique" of Quebec reflects the predominance of the French language. Does this requirement impair as little as possible the right to equality before and under the law and the right to equal protection and benefit of the law without discrimination? Is it designed not to trench on that right so severely that the legislative objective is nevertheless outweighed by the abridgment of rights? By ensuring that non‑francophones can draw up application forms for employment, order forms, invoices, receipts and quittances in any language of their choice along with French, s. 57, read together with s. 89, creates, at most, a minimal impairment of equality rights. Although, as the appellant contended, the requirement of joint use of French might create an additional burden for non‑francophone merchants and shopkeepers, there is nothing which impairs their ability to use another language equally. Thus, the conclusion we have reached with respect to the operation of s. 1 stands even if the prima facie breach of the Canadian Charter at issue is a breach of s. 15.

[32] As it is our view that the equality guarantees in s. 15 of the Canadian Charter and s. 10 of the Quebec Charter were not infringed, it is unnecessary in this case to decide whether corporations are entitled to the direct benefit of these protections. It is further unnecessary to decide whether the appellant corporation was entitled to challenge s. 57 as inconsistent with s. 15 of the Canadian Charter.

VII – Answers to the Constitutional Questions and Disposition of Appeal

[33] For these reasons the appeal is allowed in part and the constitutional questions are answered as follows:

[…]

Answer: In so far as s. 52 of An Act to Amend the Charter of the French Language remains in effect, ss. 52 (formerly s. 53) and 58 of the Charter of the French Language are protected from the application of s. 2(b) and s. 15 of the Canadian Charter of Rights and Freedoms. However, s. 58 is inconsistent with the guarantees of freedom of expression and non-discrimination provided in ss. 3 and 10 of the Quebec Charter of Human Rights and Freedoms. Section 52 of the Charter of the French Language infringes s. 3 but not s. 10 of the Quebec Charter. In so far as s. 214 of the Charter of the French Language has ceased to have effect, ss. 57, 59, 60 and 61 thereof as well as the Regulation respecting the language of commerce and business are subject to s. 2(b) and s. 15 of the Canadian Charter of Rights and Freedoms. Sections 57, 59, 60 and 61 as well as the Regulation are also subject to ss. 3 and 10 of the Quebec Charter. Sections 59, 60 and 61 as well as ss. 8, 9, and 12 to 19 of the Regulation are inconsistent with the guarantee of freedom of expression in the Canadian and Quebec Charters and non-discrimination in the Quebec Charter. Section 57 infringes s. 2(b) of the Canadian Charter and s. 3 but not s. 10 of the Quebec Charter. Because ss. 57, 59, 60 and 61 infringe s. 2(b) of the Canadian Charter, it is unnecessary to decide whether they also infringe s. 15 of the Canadian Charter.

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?

Answer: Sections 58, 59, 60 and 61 as well as ss. 8, 9 and 12 to 19 of the Regulation are not justified under s. 9.1 of the Quebec Charter. Nor are ss. 59, 60 and 61 or ss. 8, 9 and 12 to 19 of the Regulation justified under the Canadian Charter. Sections 52 and 57 are justified under s. 9.1 of the Quebec Charter. Section 57 is also justified under s. 1 of the Canadian Charter.

156158 Canada inc. c. Attorney General of Quebec , 2017 QCCA 2055 (CanLII)

[…]

N.B. – An application for leave to appeal has been filed with the Supreme Court of Canada

58. Public signs and posters and commercial advertising must be in French.

They may also be both in French and in another language provided that French is markedly predominant.

However, the Government may determine, by regulation, the places, cases, conditions or circumstances where public signs and posters and commercial advertising must be in French only, where French need not be predominant or where such signs, posters and advertising may be in another language only.

1977, c. 5, s. 58; 1983, c. 56, s. 12; 1988, c. 54, s. 1; 1993, c. 40, s. 18.

Annotations

RJR-MacDonald Inc. v. Canada (Attorney General), [1995] 3 SCR 199, 1995 CanLII 64 (SCC)

[109] A similar contrast can be drawn between the present cases and Ford, supra. In Ford, supra, this Court found that ss. 58, 69 and 205 to 208 of the Quebec Charter of the French Language, R.S.Q., c. C-11, which required public signs, posters and commercial advertising to be in the French language only, infringed s. 2(b) of the Canadian Charter of Rights and Freedoms and could not be justified under s. 1. The Court based this decision principally on the observation, at p. 780, that the prohibition was overbroad and thus did not satisfy the minimal impairment requirement:

. . . 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 the Quebec Charter and the Canadian Charter, requiring the exclusive use of French has not been so justified.

[110] However, there are two crucial distinctions between Ford and the present cases. First, although the infringed expression in Ford fell, as in the present cases, within the category of commercial expression, the nature and scope of the expression in these cases are quite different. While, in these cases, the Act prohibits only tobacco advertising, in Ford, the law prohibited all non-French commercial expression in Quebec. It was therefore much broader in scope than the prohibition under the Act. Moreover, while the Act prohibits expression that has little or no connection with "core" freedom of expression values, the commercial expression in Ford was intimately connected with such core values. The impugned law in that case represented an attempt by the government of Quebec to eradicate the commercial use in public of any language other than French. Given the close historical relationship between language, culture and politics in Canada, it cannot seriously be denied that the implications of this prohibition extended well beyond the commercial sphere and impacted upon the dignity of all minority language groups in Quebec. Indeed, the Court in Ford, supra, at p. 748, recognized this fact when it quoted with approval from Reference re Manitoba Language Rights, 1985 CanLII 33 (SCC), [1985] 1 SCR 721, at p. 744, where the Court stated:

The importance of language rights is grounded in the essential role that language plays in human existence, development and dignity.... Language bridges the gap between isolation and community, allowing humans to delineate the rights and duties they hold in respect of one another, and thus to live in society.

In my view, it cannot seriously be argued that the "dignity" of the three large corporations whose rights are infringed in these cases is in any way comparable to that of minority group members dealt with in Ford.

[111] A second important distinction between Ford and the present cases relates to the quantity of evidence adduced to satisfy the minimal impairment requirement. In Ford, no evidence was adduced to show why the exclusion of all languages other than French was necessary to achieve the objective of protecting the French language and reflecting the reality of Quebec society. Indeed, the Court in that case stated, at p. 779:

The section 1 and s. 9.1 [of the Quebec Charter] materials do not, however, demonstrate that the requirement of the use of French only is either necessary for the achievement of the legislative objective or proportionate to it. That specific question is simply not addressed by the materials. Indeed, in his factum and oral argument the Attorney General of Quebec did not attempt to justify the requirement of the exclusive use of French. He concentrated on the reasons for the adoption of the Charter of the French Language and the earlier language legislation, which, as was noted above, were conceded by the respondents.

By contrast, as I discussed above, the Attorney General in the present cases submitted a substantial body of documentation, drawn from national and international sources, to demonstrate that a full prohibition is rational and can be justified in a free and democratic society. I conclude that sufficient evidence was adduced to justify the Attorney General's submission.

Ford v. Québec (Attorney General), [1988] 2 SCR 712, 1988 CanLII 19 (SCC)

[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.

[…]

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. […]

[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.

[…]

VII – Whether the Freedom of Expression Guaranteed by s. 2(b) of the Canadian Charter of Rights and Freedoms and 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

[39] In so far as this issue is concerned, the words "freedom of expression" in s. 2(b) of the Canadian Charter and s. 3 of the Quebec Charter should be given the same meaning. As indicated above, both the Superior Court and the Court of Appeal held that freedom of expression includes the freedom to express oneself in the language of one's choice. After indicating the essential relationship between expression and language by reference to dictionary definitions of both, Boudreault J. in the Superior Court said that in the ordinary or general form of expression there cannot be expression without language. Bisson J.A. in the Court of Appeal said that he agreed with the reasons of Boudreault J. on this issue and expressed his own view in the form of the following question: "Is there a purer form of freedom of expression than the spoken language and written language?" He supported his conclusion by quotation of the following statement of this Court in Reference re Manitoba Language Rights, 1985 CanLII 33 (SCC), [1985] 1 SCR 721, at p. 744: "The importance of language rights is grounded in the essential role that language plays in human existence, development and dignity. It is through language that we are able to form concepts; to structure and order the world around us. Language bridges the gap between isolation and community, allowing humans to delineate the rights and duties they hold in respect of one another, and thus to live in society."

[40] The conclusion of the Superior Court and the Court of Appeal on this issue is correct. 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, as the preamble of the Charter of the French Language itself indicates, a means by which a people may express its cultural identity. It is also the means by which the individual expresses his or her personal identity and sense of individuality. That the concept of "expression" in s. 2(b) of the Canadian Charter and s. 3 of the Quebec Charter goes beyond mere content is indicated by the specific protection accorded to "freedom of thought, belief [and] opinion" in s. 2 and to "freedom of conscience" and "freedom of opinion" in s. 3. That suggests that "freedom of expression" is intended to extend to more than the content of expression in its narrow sense.

[…]

[42] The distinction between the message and the medium was applied by Dugas J. of the Superior Court in Devine v. Procureur général du Québec, supra, in holding that freedom of expression does not include freedom to express oneself in the language of one's choice. It has already been indicated why that distinction is inappropriate as applied to language as a means of expression because of the intimate relationship between language and meaning. As one of the authorities on language quoted by the appellant Singer in the Devine appeal, J. Fishman, The Sociology of Language (1972), at p. 4, puts it: ". . . language is not merely a means of interpersonal communication and influence. It is not merely a carrier of content, whether latent or manifest. Language itself is content, a reference for loyalties and animosities, an indicator of social statuses and personal relationships, a marker of situations and topics as well as of the societal goals and the large-scale value-laden arenas of interaction that typify every speech community." As has been noted this quality or characteristic of language is acknowledged by the Charter of the French Language itself where, in the first paragraph of its preamble, it states: "Whereas the French language, the distinctive language of a people that is in the majority French‑speaking, is the instrument by which that people has articulated its identity."

[…]

[44] […] This reasoning, assuming it to have some persuasive authority, is entirely consistent with the distinction drawn and the conclusion reached above that 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.

VIII – Whether the Guarantee of Freedom of Expression Extends to Commercial Expression

[…]

[46] It was not disputed that the public signs and posters, the commercial advertising, and the firm name referred to in ss. 58 and 69 of the Charter of the French Language are forms of expression, and it was also assumed or accepted in argument that the expression contemplated by these provisions may be conveniently characterized or referred to as commercial expression. Sections 58 and 69 appear in Chapter VII of the Charter of the French Language, entitled "The Language of Commerce and Business". It must be kept in mind, however, that while the words "commercial expression" are a convenient reference to the kind of expression contemplated by the provisions in issue, they do not have any particular meaning or significance in Canadian constitutional law, unlike the corresponding expression "commercial speech", which in the United States has been recognized as a particular category of speech entitled to First Amendment protection of a more limited character than that enjoyed by other kinds of speech. The issue in the appeal is not whether the guarantee of freedom of expression in s. 2(b) of the Canadian Charter and s. 3 of the Quebec Charter should be construed as extending to particular categories of expression, giving rise to difficult definitional problems, but whether there is any reason why the guarantee should not extend to a particular kind of expression, in this case the expression contemplated by ss. 58 and 69 of the Charter of the French Language. […]

[…]

[53] […] Freedom of expression appears in both the Canadian Charter and the Quebec Charter under the heading of "Fundamental Freedoms"; there is nothing fundamental about commercial expression. A guarantee of freedom of expression which embraces commercial advertising would be the protection of an economic right, when both the Canadian Charter and the Quebec Charter clearly indicate that they are not concerned with the protection of such rights. The American decisions recognizing a limited First Amendment protection for commercial speech must be seen in the context of a constitution that protects the right of property, whereas that right was deliberately omitted from the protection afforded by s. 7 of the Canadian Charter. This Court, in refusing to constitutionalize the right to strike, has recognized that the Canadian Charter does not extend to economic rights or freedoms. To extend freedom of expression beyond political expression, and possibly artistic and cultural expression, would trivialize that freedom and lead inevitably to the adoption of different justificatory standards under s. 1 according to the kind of expression involved. The terms of s. 1, as interpreted and applied by the courts, do not permit of such differential application. Freedom of commercial expression, and in particular commercial advertising, does not serve any of the values that would justify its constitutional protection. Commercial advertising is manipulative and seeks to condition or control economic choice rather than to provide the basis of a truly informed choice. As the American experience shows, the recognition of a limited protection for commercial expression involves an evaluation of regulatory policy that is better left to the legislature. Academic criticism of the American approach to commercial speech and judicial expression of misgivings concerning it provide sufficient reason for declining to follow it.

[…]

[58] In order to address the issues presented by this case it is not necessary for the Court to delineate the boundaries of the broad range of expression deserving of protection under s. 2(b) of the Canadian Charter or s. 3 of the Quebec Charter. It is necessary only to decide if the respondents have a constitutionally protected right to use the English language in the signs they display, or more precisely, whether the fact that such signs have a commercial purpose removes the expression contained therein from the scope of protected freedom.

[59] In our view, the commercial element does not have this effect. Given the earlier pronouncements of this Court to the effect that the rights and freedoms guaranteed in the Canadian Charter should be given a large and liberal interpretation, there is no sound basis on which commercial expression can be excluded from the protection of s. 2(b) of the Charter. It is worth noting that the courts below applied a similar generous and broad interpretation to include commercial expression within the protection of freedom of expression contained in s. 3 of the Quebec Charter. Over and above its intrinsic value as expression, commercial expression which, as has been pointed out, 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. The Court accordingly rejects the view that commercial expression serves no individual or societal value in a free and democratic society and for this reason is undeserving of any constitutional protection.

[60] Rather, the expression contemplated by ss. 58 and 69 of the Charter of the French Language is expression within the meaning of both s. 2(b) of the Canadian Charter and s. 3 of the Quebec Charter. 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. Although the expression in this case has a commercial element, it should be noted that the focus here is on choice of language and on a law which prohibits the use of a language. We are not asked in this case to deal with the distinct issue of the permissible scope of regulation of advertising (for example to protect consumers) where different governmental interests come into play, particularly when assessing the reasonableness of limits on such commercial expression pursuant to s. 1 of the Canadian Charter or to s. 9.1 of the Quebec Charter. It remains to be considered whether the limit imposed on freedom of expression by ss. 58 and 69 is justified under either s. 1 of the Canadian Charter or s. 9.1 of the Quebec Charter, as the case may be.

[…]

D. Whether the s. 1 and s. 9.1 Materials Justify the Prohibition of the Use of Any Language Other than French

[72] […] The aim of such provisions as ss. 58 and 69 of the Charter of the French Language was, in the words of its preamble, "to see the quality and influence of the French language assured". 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.

[73] The section 1 and s. 9.1 materials establish that the aim of the language policy underlying the Charter of the French Language was a serious and legitimate one. They indicate the concern about the survival of the French language and the perceived need for an adequate legislative response to the problem. Moreover, they indicate a rational connection between protecting the French language and assuring that the reality of Quebec society is communicated through the "visage linguistique". The section 1 and s. 9.1 materials do not, however, demonstrate that the requirement of the use of French only is either necessary for the achievement of the legislative objective or proportionate to it. That specific question is simply not addressed by the materials. Indeed, in his factum and oral argument the Attorney General of Quebec did not attempt to justify the requirement of the exclusive use of French. He concentrated on the reasons for the adoption of the Charter of the French Language and the earlier language legislation, which, as was noted above, were conceded by the respondents. The Attorney General of Quebec relied on what he referred to as the general democratic legitimacy of Quebec language policy without referring explicitly to the requirement of the exclusive use of French. In so far as proportionality is concerned, the Attorney General of Quebec referred to the American jurisprudence with respect to commercial speech, presumably as indicating the judicial deference that should be paid to the legislative choice of means to serve an admittedly legitimate legislative purpose, at least in the area of commercial expression. He did, however, refer in justification of the requirement of the exclusive use of French to the attenuation of this requirement reflected in ss. 59 to 62 of the Charter of the French Language and the regulations. He submitted that these exceptions to the requirement of the exclusive use of French indicate the concern for carefully designed measures and for interfering as little as possible with commercial expression. The qualifications of the requirement of the exclusive use of French in other provisions of the Charter of the French Language and the regulations do not make ss. 58 and 69 any less prohibitions of the use of any language other than French as applied to the respondents. The issue is whether any such prohibition is justified. In the opinion of this Court it has not been demonstrated that the prohibition of the use of any language other than French in ss. 58 and 69 of the Charter of the French Language is necessary to the defence and enhancement of the status of the French language in Quebec or that it is proportionate to that legislative purpose. Since the evidence put to us by the government showed that the predominance of the French language was not reflected in the "visage linguistique" of Quebec, the governmental response could well have been tailored to meet that specific problem and to impair freedom of expression minimally. Thus, 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 the Quebec Charter and 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. Such measures would ensure that the "visage linguistique" reflected the demography of Quebec: the predominant language is French. This reality should be communicated to all citizens and non-citizens alike, irrespective of their mother tongue. But exclusivity for the French language has not survived the scrutiny of a proportionality test and does not reflect the reality of Quebec society. Accordingly, we are of the view that the limit imposed on freedom of expression by s. 58 of the Charter of the French Language respecting the exclusive use of French on public signs and posters and in commercial advertising is not justified under s. 9.1 of the Quebec Charter. In like measure, the limit imposed on freedom of expression by s. 69 of the Charter of the French Language respecting the exclusive use of the French version of a firm name is not justified under either s. 9.1 of the Quebec Charter or s. 1 of the Canadian Charter.

X – Do Sections 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?

[…]

[82] Thus in addressing the question whether s. 58 of the Charter of the French Language infringes the guarantee against discrimination based on language in s. 10 of the Quebec Charter of Human Rights and Freedoms we are obliged to consider the effect of s. 58, in so far as that may be ascertained. The second observation to be made here is that in order for a distinction based on a prohibited ground to constitute discrimination within the meaning of s. 10 it must have the effect of nullifying or impairing the right to full and equal recognition and exercise of a human right or freedom, which must mean a human right or freedom recognized by the Quebec Charter of Human Rights and Freedoms. With these observations in mind we turn to the question whether s. 58 infringes s. 10. It purports, as was said by the Superior Court and the Court of Appeal, to apply to everyone, regardless of their language of use, the requirement of the exclusive use of French. It has the effect, however, of impinging differentially on different classes of persons according to their language of use. Francophones are permitted to use their language of use while anglophones and other non-francophones are prohibited from doing so. Does this differential effect constitute a distinction based on language within the meaning of s. 10 of the Quebec Charter? In this Court's opinion it does. Section 58 of the Charter of the French Language, because of its differential effect or impact on persons according to their language of use, creates a distinction between such persons based on language of use. It is then necessary to consider whether this distinction has the effect of nullifying or impairing the right to full and equal recognition and exercise of a human right or freedom recognized by the Quebec Charter. The human right or freedom in issue in this case is the freedom to express oneself in the language of one's choice, which has been held to be recognized by s. 3 of the Quebec Charter. In this case, the limit imposed on that right was not a justifiable one under s. 9.1 of the Quebec Charter. The distinction based on language of use created by s. 58 of the Charter of the French Language thus has the effect of nullifying the right to full and equal recognition and exercise of this freedom. Section 58 is therefore also of no force or effect as infringing s. 10 of the Quebec Charter. The same conclusion must apply to s. 69 of the Charter of the French Language. We note that since one of the respondents, Valerie Ford, is an individual and not a corporation, it is unnecessary in this case to decide whether corporations are entitled to claim the benefit of equality guarantees and we do not do so.

Devine v. Quebec (Attorney General), [1988] 2 SCR 790, 1988 CanLII 20 (SCC)

II – Whether the Challenged Provisions Are Ultra Vires the Quebec Legislature

[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, 1974 CanLII 164 (SCC), [1975] 2 SCR 182, and on the opinion of Professor Hogg in Constitutional Law of Canada (2^nd 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 to reproduce here the references to the authorities in support of that conclusion which are fully set out in their opinions, including a long extract from the opinion of Professor Hogg. We adopt the following passages of the opinion of Professor Hogg as a statement of the law on this question, i.e., that:

...

In order to be valid, provincial legislation with respect to language must be truly in relation to an institution or activity that is otherwise within provincial legislative jurisdiction.

[15] While agreeing with this premise as to the nature of provincial jurisdiction with respect to language, the members of the Court of Appeal differed, as indicated above, as to whether s. 58 of the Charter of the French Language, which requires that public signs and posters and commercial advertising shall be solely in French, is truly in relation to commerce within the province. It should be noted that in the Court of Appeal the appellant apparently did not, as he did in this Court, challenge provincial legislative jurisdiction to require the use of French without prohibiting the use of any other language (the "joint use" of French referred to in the second constitutional question). The majority in the Court of Appeal held that the challenged provisions were in relation to commerce within the province. The minority opinion, as expressed by Paré J.A., with whom Montgomery J.A. concurred in separate dissenting reasons, was that while the provisions requiring the "joint use" of French, to use the terms of the constitutional questions, could be said to be in relation to commerce within the province, those requiring the "exclusive use" of French could not. Paré J. based this distinction on the premise that in order to be in relation to commerce within the province a language provision must be calculated to favour such commerce or at least be of some remedial nature in relation to it. He reasoned that while the requirement of the "joint use" of French obviously conferred certain benefits on the francophone population in commercial dealings which would enure to the overall benefit of commerce within the province, the requirement of the exclusive use of French while perhaps conferring some advantage on francophones could not conceivably have any overall beneficial effect on commerce within the province. He concluded that the purpose of the requirement of the "exclusive use" of French was the purely ideological one, unrelated to commerce within the province, of enhancing the status of French.

[16] On this issue we are in agreement with the majority in the Court of Appeal. It is true, as the preamble of the Charter of the French Language indicates, that one of its objects is "to make of French the language of ... commerce and business" but that object necessarily involves the regulation of an aspect of commerce and business within the province, whatever the nature of the effect of such regulation may be. The purpose and effect of the challenged provisions of Chapter VII of the Charter of the French Language entitled "The Language of Commerce and Business" is to regulate an aspect of the manner in which commerce and business in the province may be carried on and as such they are in relation to such commerce and business. 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. As such, they fall within provincial legislative jurisdiction under the Constitution Act, 1867.

[…]

[18] […] Section 58 cannot be viewed in isolation from the other provisions of the Charter of the French Language and the Regulation respecting the language of commerce and business. Together they constitute a regulatory scheme directed to certain aspects of commercial activity. The regulatory concern is avowedly the relationship between language status and such commercial activity but it is nevertheless a valid provincial regulatory purpose in relation to commerce within the province. 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. We are therefore of the opinion that s. 58 of the Charter of the French Language is not ultra vires the provincial legislature as constituting criminal law.

[…]

[21] For the reasons given in Ford, ss. 52 (formerly s. 53) and 58 of the Charter of the French Language are 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, enacted pursuant to s. 33 of the Canadian Charter, in the form of s. 52 of An Act to amend the Charter of the French Language, S.Q. 1983, c. 56. However, it was held in Ford that s. 58 infringes the guarantee of freedom of expression in s. 3 of the Quebec Charter of Human Rights and Freedoms, infringes the guarantee against discrimination based on language in s. 10 of the Quebec Charter, is not saved from its s. 3 infringement by considerations under s. 9.1, and is thus of no force or effect. In this case, s. 52 of the Charter of the French Language is subject to scrutiny only under ss. 3, 9.1 and 10 of the Quebec Charter.

[…]

[24] It remains to be considered whether the limit imposed on freedom of expression by the challenged provisions of the Charter of the French Language, which require the use of French while at the same time permitting the use of another language, is justified under s. 1 of the Canadian Charter of Rights and Freedoms and s. 9.1 of the Quebec Charter. The section 1 and s. 9.1 materials submitted by the Attorney General of Quebec in justification of the challenged provisions were considered in Ford. For the reasons there stated, legislation requiring the exclusive as opposed to the predominant use of French is not justified under s. 1 or s. 9.1. Section 58 of the Charter of the French Language, as was shown in Ford, does require exclusive use of French and therefore does not survive s. 9.1 scrutiny. For the reasons given in that case the requirement of either joint or predominant use is justified under s. 9.1 and s. 1.

[25] However, s. 58 cannot be struck down in isolation; if it is found ultra vires, so too are several of its companion provisions at issue in the instant case. Sections 59, 60 and 61 as well as ss. 8, 9, 12, 13, 14, 15, 16 and 19 of the Regulation respecting the language of commerce and business create exceptions to s. 58. By leaving these exceptions standing, exceptions which on their own would withstand s. 9.1 or s. 1 scrutiny, the Court would be effecting an inversion of legislative intention. Clearly the sections were enacted in order to provide some relief from the stringent requirement of exclusivity mandated by s. 58. Section 59 simply has no meaning independent of s. 58; it cannot be an explicit exception to a rule that no longer exists. The exception contained in s. 60 is of an implicit nature. It provides that firms employing fewer than four persons are exempted from the requirement of exclusive use of French found in s. 58. Section 60 further provides that the French language must be given "at least as prominent display" as any inscription in any other language. This requirement is even less demanding than what Quebec could impose consistent with the Court's reasons in Ford. But if the general rule, s. 58, is struck down while the exception, s. 60, is allowed to stand, firms employing fewer than four persons--which had been subject to a less stringent regime than other firms--would suddenly be subject to a more stringent regime. Such a reversal of legislative intent can only be avoided if this Court now renders s. 60 of no force or effect. Similarly, once s. 58 is struck down, s. 61 and ss. 8, 9, 12, 13, 14, 15, 16 and 19 of the Regulation respecting the language of commerce and business must be struck down as well. 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 respecting the language of commerce and business 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.

[26] To strike down both s. 58 and its exceptions is consistent with the reasons of Dickson C.J. in R. v. Morgentaler, 1988 CanLII 90 (SCC), [1988] 1 SCR 30, at p. 80. Discussing the Criminal Code provisions respecting abortion which were struck down in that case, the Chief Justice noted that counsel for the Crown and for the Attorney General of Canada had both conceded that "the whole of s. 251 should fall if it infringed s. 7":

This was a wise approach, for in Morgentaler (1975), at p. 676, the Court held that "s. 251 contains a comprehensive code on the subject of abortions, unitary and complete within itself". Having found that this "comprehensive code" infringes the Charter, it is not the role of the Court to pick and choose among the various aspects of s. 251 so as effectively to re-draft the section.

Although in the present case several sections are in issue, and not a single one as in Morgentaler, the same principle applies. A single scheme is being dealt with, 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.

Québec (Procureure générale) v. Magasins Best Buy ltée , 2015 QCCA 747 (CanLII)

[3] The respondents post their trade-marks on the storefronts of the establishments they operate in Quebec. These trade-marks include English-language words ("Guess", "Curves"), combinations of such ("Best Buy", "Old Navy" or "Banana Republic"), portmanteaus ("ConnectPro", "Walmart"), and other distinctive elements that are not linguistic (signs, for example) or that are connected to a particular graphic representation (colour, calligraphy, spatial layout, etc.). What these trade-marks (or the storefront panels on which they appear) do not include is French-language generic or specific terms.

[4] Are the respondents thereby violating the Charter of the French Language (the "Charter")? More specifically, must the respondents add a French-language generic term to the trade-marks they put on their signage to comply with the Charter?

[…]

[11] As a general rule, public posting – i.e., public posting in all its forms, broadening quite a bit the concept of "signs" in the expression "signs and posters" in the English version of section 58 – must therefore be in French, or if another language is used, it must be used in such a manner as to make the French markedly predominant. However – and the adverb signals an exception to the general rule – the government may determine, in such cases and under the conditions provided by regulation, that such posting may occur in another language only. The provision states the exception just as clearly as the general rule: the legislature tells us that, in certain circumstances, it is indeed permitted to post (that is, to publicly announce by posting a sign) “only” in a language other than French (i.e., to the exclusion of French).

[12] What are these circumstances?

[13] They are stated in section 25 of the Regulation:

25. Dans l'affichage public et la publicité commerciale, peuvent être rédigés uniquement dans une autre langue que le français : 1° le nom d'une entreprise établie exclusivement hors du Québec;	25. On public signs and posters and in commercial advertising, the following may appear exclusively in a language other than French: (1) the firm name of a firm established exclusively outside Québec;
2° une appellation d'origine, la dénomination d'un produit exotique ou d'une spécialité étrangère, une devise héraldique ou toute autre devise non commerciale;	(2) a name of origin, the denomination of an exotic product or foreign specialty, a heraldic motto or any other non-commercial motto;
3° un toponyme désignant un lieu situé hors du Québec ou un toponyme dans cette autre langue officialisé par la Commission de toponymie du Québec, un patronyme, un prénom ou un nom de personnage, de même qu'un nom distinctif à caractère culturel;	(3) a place name designating a place situated outside Québec or a place name in such other language as officialized by the Commission de toponymie du Québec, a family name, a given name or the name of a personality or character or a distinctive name of a cultural nature; and
4° une marque de commerce reconnue au sens de la Loi sur les marques de commerce (L.R.C. 1985, c. T-13), sauf si une version française en a été déposée.	(4) a recognized trade mark within the meaning of the Trade Marks Act (R.S.C. 1985, c. T-13), unless a French version has been registered.
[Soulignements ajoutés.]

[14] Therefore, according to the fourth paragraph of the preceding regulatory provision, it is possible to publicly post a trade-mark that does not include a French-language unit or free morpheme if a French version has not been registered. On this last point, we note that the provision does not compel the entity with several trade-marks at its disposal, one of which may be in French or have a French version, to use a French one rather than the others. It is also noteworthy that section 25 does not specify or limit the type of public posting covered and therefore contemplates all types of posting, including signs hung on storefronts.

[…]

[20] Admittedly, the Charter, like any statute, must be given a broad and generous interpretation to ensure that its objectives are achieved and this in a manner that takes into account its wording and context. The same is true with regards to the Regulation, with appropriate modifications. It is also true that the principles set out in the Charter and outlined in the Regulation, like any other principles, are not neutralized by the exceptions they contain. Such exceptions must receive a strict interpretation, especially since some embody a principle or strike a balance sought by the legislature. The fact remains that exceptions, like principles, must have meaning and cannot be denied in the name of the principles (any more than the reverse).

[…]

[22] We reiterate that the first two paragraphs of section 58 state the principle that public posting must be in French or give French a position that is markedly predominant. The manner or the purpose of the posting is not otherwise specified, so we must understand that any public posting is contemplated, irrespective of format or function, including the name or names of an enterprise. As for the third paragraph, it states the exception to the principle of French or predominant French in plain language: under the conditions and in those cases determined by regulation, public posting may be “in another language only”. This exception is implemented under section 25 of the Regulation, which states that public posting (for any purpose at all, since the provision does not specify) of a trade-mark or other designation “exclusively” in a language other than French is authorized.

[…]

[24] Section 58(3) of the Charter and section 25 of the Regulation cannot simultaneously state that posting exclusively in a language other than French is permitted, but only if it is accompanied by a French-language generic term. If there is a French-language generic term, then obviously the posting is not exclusively in a language other than French. The interpretation proposed by the Attorney General based on section 27 of the Regulation renders the use of the word "exclusively" in section 58(3) of the Charter and section 25 of the Regulation meaningless, whereas this word reflects the very essence of the exception these provisions acknowledge. The argument must therefore fail.

[…]

[27] This provision is unequivocal. Its first paragraph authorizes an enterprise to take a name in a language other than French provided that, when it is used, the French name "appears at least as prominently". However – and once again, the use of this adverb signals an exception – when that use is for public signs and posters, the second paragraph permits the use of a name in a language other than French, pursuant to section 58 of the Charter and the regulations enacted thereunder, in this case, section 25 of the Regulation.

[28] As we know, section 25(4) of this regulation permits the posting of a trade-mark exclusively in a language other than French and, obviously, without the addition of a French-language generic term. It is apparent that a trade-mark that does not include French may be posted as is, even when used as a name or in the manner of a business name, without adding a French-language generic term. To apply section 67 of the Charter and section 27 of the Regulation to this case would render the exception under the second paragraph of section 68 of the Charter meaningless.

[29] There is nothing in the Charter (or any other statute) that allows for any other conclusion, which is in fact consistent with the settled interpretation that the Office québécois de la langue française has used for over 15 years. On this last point, the Attorney General points out that an administrative interpretation contrary to the wording of the statute would not prevent its true meaning from being reasserted. That is true, but as Professor Côté has pointed out in an excerpt cited by the trial judge: "A settled interpretation, if consistent with the text of the enactment, should not be overruled without good reason". That is precisely the case here: the interpretive conduct of the Office and the government in this case has long been consistent with the statute, and there has only recently been a shift, one that is not in step with the statutes and regulations.

[30] In short, whether the question is approached merely from the point of view of section 58 or through a combined reading of sections 63, 67, and 68 of the Charter, the outcome is the same: the respondents are entitled to post their trade-marks as is on their storefronts, even if they do not include any French.

[31] In the first case, they are entitled to post because of the exception under the third paragraph of section 58 of the Charter, which enables the government to derogate from the principle of posting in French (or ensuring that French is predominant). It is the government that enacted this derogation, set out in four parts under section 25 of the Regulation. The fourth part permits the public posting of a trade-mark exclusively in a language other than French (when it does not have a French version).

[32] In the second case, that is, where the trade-mark is also used as a name, whether the actual corporate name or another name, section 68 creates an exception to sections 63 and 67 of the Charter by permitting an enterprise to use a name in a language other than French that cannot usually be used alone except in public posting under section 58. This referral leads us back to the four scenarios listed under section 25 of the Regulation, which include trade-marks only in a language other than French (and without a French version), which may therefore be posted as is.

[33] In sum, like the trial judge, the Court finds that the posting practices at issue comply with the Charter and the Regulation, which permit the public posting of a trade-mark that does not include any French (and has no French version), including when that trade-mark is posted on a storefront.

Entreprises W.F.H. Ltée v. Québec (Procureure Générale du), 2001 CanLII 17598 (QC CA) [judgment available in French only]

[OUR TRANSLATION]

THE LEGISLATIVE HISTORY OF SECTION 58 OF THE CHARTER OF THE FRENCH LANGUAGE

[10] In 1977, the Quebec legislature adopted the Charter of the French Language, which provides, in sections 1 and 58 that public signs and posters and commercial advertising are to be produced solely in French, with some exceptions.

[11] On December 15, 1988, in Ford v. Quebec (A.G), 1988 CanLII 19 (SCC), [1988] 2 S.C.R. 712, the Supreme Court of Canada declared s. 58 to be of no force or effect because it constitutes a violation of the freedom of expression guaranteed by s. 3 of the Charter of Human Rights and Freedoms and the freedom from discrimination based on language, set out in s. 10 of the Quebec Charter, a violation that is not justified by s. 9.1 of this Charter.

[12] That same day, in Devine v. Quebec (A.G.), 1988 CanLII 20 (SCC), [1988] 2 S.C.R. 790, the Supreme Court declared certain other provisions of the Charter of the French Language to be of no force or effect for violating the right to freedom of expression and the right to equality. This decision will be the subject of further comments below.

[13] On December 22, 1988, the Act to amend the Charter of the French Language, (S.Q. 1988, c. 54) came into force. It established the rule of French unilingualism on public signs and posters placed outside an establishment while also allowing indoor signage to be bilingual, under certain conditions.

[14] This Act contains a notwithstanding clause of a duration of five years, as allowed by s. 33 of the Canadian Charter of Rights and Freedoms, which exempted ss. 58 and 68 (1st paragraph) from scrutiny under the charters.

[15] In 1993, upon the expiration of the notwithstanding clause, the Act to Amend the Charter of the French Language, (S.Q. 1993, c. 40) came into force. It is the new section 58 that is the subject of this dispute.

[…]

IS THE RIGHT TO FREEDOM OF EXPRESSION VIOLATED BY THE REQUIREMENT OF THE MARKED PREDOMINANCE OF FRENCH?

[44] The provision requiring public signage and commercial advertising to be produced exclusively in French was declared to be inoperative in 1988. Clearly, such a provision would still be inoperative today.

[45] In 1988, the Supreme Court declared in obiter, that is, without it being necessary to support its decision, that requiring the French language to be predominant, even markedly so, on posters and signs would be proportional to the objective of promoting and preserving a French “visage linguistique” in Quebec and would consequently be justified under the Quebec and Canadian Charters. The Supreme Court went so far as to specifically say, on p. 780 of the decision in Ford, that French could be required in addition to any other language and that French could be required to be more visible than other languages.

[46] I am of the opinion that s. 58, in its current form, does nothing more than reproduce the guidelines formulated by the Supreme Court. I am also of the opinion that in light of the evidence submitted to the Supreme Court in 1988, a provision such as the current s. 58 would have withstood a challenge based on the right to freedom of expression and the right to equality, and would not have been declared to be inoperative.

[…]

[88] I share the opinion of the Honourable Justice of the Superior Court that stare decisis applies to Devine; I also agree that there was a strong legal basis to conclude that if s. 58 in its current version violates s. 15(1) of the Canadian Charter and s. 10 of the Quebec Charter, the violation is justified under s. 1 and s. 9.1.

[89] Despite this conclusion which made it possible to allow the appeal to the Superior Court, the judge still set out to determine whether s. 58 violated the right to equality. After a review of the case law, and particularly the recent judgment of the Supreme Court in Law v. Canada, 1999 CanLII 675 (SCC), [1999] 1 S.C.R. 497, the judge concluded that the evidence submitted to him did not establish that s. 58 limited the right to equality. In my view, considering the arguments made by the appellant, this conclusion was thus irrefutable.

[90] In accordance with the principles developed in Law, the Honourable Justice of the higher court answered three questions that would need to be addressed by a court that is called upon to determine a discrimination claim under s. 15(1). These three questions are formulated as follows at para. 39:

First, does the impugned law a) draw a formal distinction between the claimant and others on the basis of one or more personal characteristics, or (b) fail to take into account the claimant’s already disadvantaged position within Canadian society resulting in substantively differential treatment between the claimant and others on the basis of one or more personal characteristics? If so, there is differential treatment for the purpose of s. 15(1). Second, is the claimant subject to differential treatment based on one or more enumerated and analogous grounds? And, third, does the differential treatment discriminate in a substantive sense, bringing into play the purpose of s. 15(1) of the Charter to remedy ills such as prejudice, stereotypes and historical disadvantage?

[91] In my opinion, his answers appear to be accurate. It is clear that s. 58 imposes different treatment on a Francophone and a person with a different mother tongue. A Francophone can simply do his or her advertising exclusively in his or her mother tongue, while a person speaking another language must add to the text in his or her language a clearly predominant French version. However, Law clearly establishes that a difference in treatment is not necessarily synonymous with prohibited discrimination. As laid down in para. 83 of Law, the first question the Court must ask in each case is whether there has been an infringement of human dignity, in view of the historical, social, political and legal background in which the allegation is made.

[92] It was recognized in Ford, at p. 778, that the linguistic policy behind the Charter of the French Language pursues an important and legitimate objective. This objective is described in the preamble: to ensure the quality and influence of French. At p. 777 of Ford, the Supreme Court affirms that the documents provided as evidence amply establish the importance of the legislative purpose of the Charter of the French Language and the fact that it is intended to respond to an urgent and substantial need.

[93] A non-Francophone merchant is free to produce advertising using any form and content that he or she wishes. The merchant is simply asked to add a French version that is markedly predominant. Like the Honourable Justice of the Superior Court, I do not see any attack on the merchant’s dignity or any discrimination.

[…]

CONCLUSION

[117] I am of the view that s. 58 of the Charter of the French Language adopted by the Quebec government in accordance with the principles set out by the Supreme Court in Ford and Devine is a valid provision and that the appellant did not bring any relevant evidence that would have allowed the Superior Court to review the conclusions on the language of public signs and posters and commercial advertising in Quebec.

[118] I therefore propose affirming the judgment of the Superior Court and dismissing the appeal, with costs.

156158 Canada inc. c. Attorney General of Quebec , 2017 QCCA 2055 (CanLII)

[103] In 1988, the Supreme Court of Canada in Ford declared, in obiter dictum, that “requiring the predominant display of the French language, even its marked predominance”, would be justified under s. 1 of the Canadian Charter and s. 10 of the Quebec Charter. The Court proposed two constitutionally valid alternatives to requiring the exclusive use of French. First, “French could be required in addition to any other language”. Second, French “could be required to have greater visibility than that accorded to other languages.”

[104] The Supreme Court in Ford decided that each alternative — the joint display of French or the predominant display of French — satisfied the Oakes test under both the Canadian Charter and the Quebec Charter.

[105] Moreover, there is nothing “theoretical” about the obiter dictum in Ford. When the Supreme Court invalidates an unconstitutional rule, it often proposes constitutionally valid alternatives or guidelines for the legislature. In this case, the Supreme Court left the legislator a choice between two constitutionally valid options. It is not for the courts to now question that choice.

[…]

[107] On the other hand, the post Ford version of s. 58 C.F.L. provides that French be markedly predominant when used with another language in commercial advertising and public signs, which the C.F.L. Rules stipulate to mean that French text must be twice as large as the text of any other language. This accords with the second alternative proposed by the Supreme Court in Ford. This Court so decided in Entreprises W.F.H. In that case, the Court held that s. 58 C.F.L. implemented the obiter dictum expressed by the Supreme Court in Ford. The Court felt bound by the Supreme Court proposition that a markedly predominant requirement would satisfy the Oakes test. In such regard, Entreprises W.F.H. is a relevant and binding precedent, contrary to Appellants contention.

[…]

[110] The legislature’s choice of how to require the joint or “markedly predominant” display of French does not raise a new legal issue in the sense of Bedford and Carter. The Court in Ford clearly indicated that both alternatives satisfied s. 1 of the Canadian Charter and s. 9.1 of the Quebec Charter. There have been no significant developments in the law on this issue since Ford. Also, and as addressed above, the judge of the Court of Quebec found on the facts that no fundamental change in the status of the French language had occurred in Quebec since Ford and Devine and on review, the judge of the Superior Court found no error in such determination. In turn, I find no error in the opinion of the judge of the Superior Court.

[111] The Appellants have argued that the evidence they adduced should at least justify striking down provisions requiring predominant use of French in favour of joint use or shift the burden to Respondent to justify its choice away from the less intrusive alternative suggested by the Supreme Court in Ford. This, say Appellants, would still maintain the “visage linguistique” while minimally intruding on minority rights. Such an argument may well have merit in a policy discussion at the Quebec legislature. However, it is not for the courts to enter into a debate on policy options adopted by the legislature in complying with the Supreme Court’s directive, as the Superior Court judge correctly stated. Markedly predominant use of French was one option put forward by the Supreme Court. It is not for this Court to review the legislature’s choice in the present circumstances.

[…]

4) Do the limitations set out in ss. 51, 52 and 58 C.F.L. violate the right to liberty guaranteed by s. 7 of the Canadian Charter and s. 1 of the Quebec Charter?

5) Do the limitations set out in ss. 51, 52 and 58 C.F.L. violate the right to peaceful enjoyment of private property guaranteed by s. 6 of the Quebec Charter?

[127] The wording of s. 6 of the Charter of Quebec is clear:

6. Every person has a right to the peaceful enjoyment and free disposition of his property, except to the extent provided by law.

6. Toute personne a droit à la jouissance paisible et à la libre disposition de ses biens, sauf dans la mesure prévue par la loi.

N.B. – An application for leave to appeal has been filed with the Supreme Court of Canada

Québec (Procureur général) v. 9074-3527 Québec inc., 2006 QCCQ 7174 [judgment available in French only]

[OUR TRANSLATION]

[1] The defendant, 9074-3527 Québec Inc. is accused of committing the following offence:

[translation]

[…]

[15] The issue in dispute is whether the commercial advertising published exclusively in English in the Nightlife Magazine benefits from the exception provided for in section 59 of the Charter of the French Language. Otherwise, does the commercial advertising published in the Nightlife Magazine comply with the prescriptions in section 58 of the Charter?

Analysis

[16] There are no provisions in the Charter of the French Language or in its regulations which specifically govern the advertising content of bilingual periodicals.

[17] In this case, there would have been no dispute if Nightlife Magazine had separated its French content from its English content and had only inserted the three ads written in English in the Anglophone section of the magazine. This situation is in fact tolerated by the Office de la langue française.

[18] According to the claim, strictly speaking, the exception provided in section 59 should only benefit a news medium published exclusively in a language other than French. However, the word exclusively does not appear in the language of this section.

[19] In short, and as highlighted by the Crown, [translation] “the debate concerns the fact that there is no section reserved for English in the periodical (a requirement that is not found in the Act but in an administrative interpretation of the Office)”. The Court is obviously not bound by an administrative interpretation of the Office de la langue française.

[20] One simply has to look through the Nightlife periodical to note that the French and English content is not provided in separate sections and that the use of both languages can sometimes be found within the same article.

[21] Nevertheless, section 58 specifies that commercial advertising can be done both in French and in another language, provided the French is markedly predominant. This section also specifies that the government can determine by regulation, the places, cases, conditions or circumstances where commercial advertising must be done in French only or can be done without the predominance of French or exclusively in the other language.

[22] Consultation of the Regulation defining the scope of the expression “markedly predominant” for the purposes of the Charter of the French language (c. C-11, r. 10.2) does not provide any solution for the matter in dispute. Section 1 refers to “posted” commercial advertising, which is not the situation in this case.

[23] Section 22 of the Regulation respecting the language of commerce and business (c. C-11, r.9.01) stipulates that unless the vehicle used is a news medium publishing or broadcasting in French, the commercial advertising of a news medium may be done only in a language other than French if the news medium publishes or broadcasts in that other language.

[24] Even then, the legislature did not offer further details regarding the publications that publish or broadcast in the two (2) languages.

[25] Counsel for the defendant invites the Court to apply the strict interpretation of penal laws to provisions 58 and 59 of the Charter.

[26] It is first necessary to examine the provisions of the Interpretation Act.

[27] In fact, the Interpretation Act (R.S.Q. c. I-16) contains certain provisions that could answer the issue in dispute.

40. The preamble of every statute shall form part thereof, and assist in explaining its purport and object.

In case of doubt, the construction placed on any Act shall be such as not to impinge on the status of the French language.

[…]

[29] In the situation that concerns us, would it be plausible to believe that by virtue of section 59, it was the legislature’s intention to have advertisements written exclusively in English, without any translation, in a periodical written primarily in French?

[30] The primary purpose of legislative provisions concerning the use of French in advertising is stated in section 5 of the Charter:

5. Consumers of goods and services have a right to be informed and served in French.

[31] Endorsing the defendant’s position means accepting that Francophone consumers will not be informed in their language. It would be unthinkable for that to have been the intention of the legislature in view of section 59 of the Charter of the French Language.

[32] Consequently, if the periodical is published in both English and French, the advertisements should be in French or bilingual, or even feature French in the French section and English in the English section.

[33] It cannot be claimed, as the defendant contends, that since roughly 30% of the content of Nightlife is in English, Nightlife should have the right to feature roughly 30% of advertisements in English only. This would mean accepting that Francophone readers would be deprived of 30% of consumer information. Section 59 exists for news media publishing or broadcasting in a language other than French (e.g., The Gazette newspaper, radio stations broadcasting in English, etc.). The purpose of this section is obviously to exempt these news media from publishing or broadcasting their advertisements in French. Nightlife magazine is not a magazine that publishes information in a language other than French. Instead, it is a magazine that publishes information primarily in French (70%) and to a lesser extent, in English. In such a case, section 58 stipulates that commercial advertising can be done in both French and another language, as long as the French in it is markedly predominant.

[35] The restrictive interpretation of section 59 that the defendant advocates has no application in this case:

The principle of strict construction of penal statutes is thus not totally set aside by the Interpretation Acts. It has merely been accorded a subsidiary role, applicable when attempts at impartial interpretation suggested by section 12 of the federal Interpretation Act and section 41 its Quebec counterpart still leave reasonable doubt as to the meaning or scope of the text.

[36] Professor Côté also stresses the special status of the Charter of the French Language:

Mention should also be made of another fundamental law, Quebec’s Charter of the French Language. Section 40 of the Quebec Interpretation Act declares: “In case of doubt, the construction placed on any Act shall be such as not to impinge on the status of the French language”.

[37] However, as emphasized by the Honorable Justice Gonthier, in Ontario v. C.P. while speaking on the interpretation of legislation:

In particular, a deferential approach should be taken in relation to legislative enactments with legitimate social policy objectives, in order to avoid impeding the state’s ability to pursue and promote those objectives.

[38] An analysis of sections 58 and 59 of the Charter of the French Language, in light of the provisions of the Interpretation Act, does not reveal any real ambiguity. It is therefore not necessary to resort to other principles of interpretation.

[39] In conclusion, the argument whereby the freedom of expression of merchants is unduly limited by sections 58 and 59 of the Charter of the French Language cannot be accepted. Several options are available to merchants to allow them to exercise their freedom of expression while still respecting the provisions of the Charter of the French Language.

[40] Consequently, the defendant is found guilty of the offence of which it has been accused.

Annotations

Devine v. Quebec (Attorney General), [1988] 2 SCR 790, 1988 CanLII 20 (SCC)

[21] For the reasons given in Ford, ss. 52 (formerly s. 53) and 58 of the Charter of the French Language are 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, enacted pursuant to s. 33 of the Canadian Charter, in the form of s. 52 of An Act to amend the Charter of the French Language, S.Q. 1983, c. 56. However, it was held in Ford that s. 58 infringes the guarantee of freedom of expression in s. 3 of the Quebec Charter of Human Rights and Freedoms, infringes the guarantee against discrimination based on language in s. 10 of the Quebec Charter, is not saved from its s. 3 infringement by considerations under s. 9.1, and is thus of no force or effect. In this case, s. 52 of the Charter of the French Language is subject to scrutiny only under ss. 3, 9.1 and 10 of the Quebec Charter.

[22] Sections 57, 59, 60 and 61 of the Charter of the French Language and the Regulation respecting the language of commerce and business, which require the use of French but permit the use of another language at the same time, are no longer 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 enacted pursuant to s. 33 of the Canadian Charter, since s. 214 of the Charter of the French Language ceased to have effect on June 23, 1987. These provisions are, of course, also subject to ss. 3 and 10 of the Quebec Charter of Human Rights and Freedoms.

[23] 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 of Rights and Freedoms, 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 s. 52 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. As was said by Dickson J. (as he then was) in R. v. Big M Drug Mart Ltd., 1985 CanLII 69 (SCC), [1985] 1 SCR 295, at p. 336, freedom consists in an absence of compulsion as well as an absence of restraint. This Court is thus of the view that ss. 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 of Rights and Freedoms. These sections and s. 52 similarly infringe the freedom of expression guaranteed by s. 3 of the Quebec Charter.

Québec (Procureur général) v. 9074-3527 Québec inc., 2006 QCCQ 7174 (CanLII) [judgment available in French only]

[OUR TRANSLATION]

[1] The defendant, 9074-3527 Québec Inc. is accused of committing the following offence:

[translation]

[…]

Analysis

[16] There are no provisions in the Charter of the French Language or in its regulations which specifically govern the advertising content of bilingual periodicals.

[24] Even then, the legislature did not offer further details regarding the publications that publish or broadcast in the two (2) languages.

[25] Counsel for the defendant invites the Court to apply the strict interpretation of penal laws to provisions 58 and 59 of the Charter.

[26] It is first necessary to examine the provisions of the Interpretation Act.

[27] In fact, the Interpretation Act (R.S.Q. c. I-16) contains certain provisions that could answer the issue in dispute.

40. The preamble of every statute shall form part thereof, and assist in explaining its purport and object.

In case of doubt, the construction placed on any Act shall be such as not to impinge on the status of the French language.

[…]

[30] The primary purpose of legislative provisions concerning the use of French in advertising is stated in section 5 of the Charter:

5. Consumers of goods and services have a right to be informed and served in French.

[33] It cannot be claimed, as the defendant contends, that since roughly 30% of the content of Nightlife is in English, Nightlife should have the right to feature roughly 30% of advertisements in English only. This would mean accepting that Francophone readers would be deprived of 30% of consumer information. Section 59 exists for news media publishing or broadcasting in a language other than French (e.g., The Gazette newspaper, radio stations broadcasting in English, etc.). The purpose of this section is obviously to exempt these news media from publishing or broadcasting their advertisements in French. Nightlife magazine is not a magazine that publishes information in a language other than French. Instead, it is a magazine that publishes information primarily in French (70%) and to a lesser extent, in English. In such a case, section 58 stipulates that commercial advertising can be done in both French and another language, as long as the French in it is markedly predominant.

[35] The restrictive interpretation of section 59 that the defendant advocates has no application in this case:

[36] Professor Côté also stresses the special status of the Charter of the French Language:

[37] However, as emphasized by the Honorable Justice Gonthier, in Ontario v. C.P. while speaking on the interpretation of legislation:

[40] Consequently, the defendant is found guilty of the offence of which it has been accused.

60. (Repealed).

1977, c. 5, s. 60; 1988, c. 54, s. 3.

61. (Repealed).

1977, c. 5, s. 61; 1988, c. 54, s. 4; 1993, c. 40, s. 20.

62. (Repealed).

1977, c. 5, s. 62; 1983, c. 56, s. 13; 1988, c. 54, s. 5; 1993, c. 40, s. 20.

63. The name of an enterprise must be in French.

1977, c. 5, s. 63; 1999, c. 40, s. 45.

Annotations

Québec (Procureure générale) v. Magasins Best Buy ltée , 2015 QCCA 747 (CanLII)

[…]

[16] The Attorney General, however argues that subsection 25(4) of the Regulation is in fact more restrictive than it appears, insofar as it must be read together with section 27 of the same regulation. To properly understand this assertion, she explains, sections 63 and 67 of the Charter must first be taken into account. Under those provisions, the name of an enterprise (that is, its corporate name and the name under which it does business, identifies itself or is known, within the meaning of articles 305 and 306 C.C.Q. or the Act Respecting the Legal Publicity of Enterprises) must be in French, in whole (as per section 63) or in part (as per section 67). In the second case, under conditions established by regulation, the establishment of a name including a specific term (that is, a distinctive term) taken from a language other than French is indeed allowed. The conditions in question are those set out under section 27 of the Regulation, which requires that any such specific term must be accompanied by a French-language generic term. These are the provisions in question: […]

[…]

64. To obtain juridical personality, it is necessary to have a name in French.

1977, c. 5, s. 64.

65. Every name that is not in French must be changed before 31 December 1980, unless the Act under which the enterprise is incorporated does not allow it.

1977, c. 5, s. 65; 1999, c. 40, s. 45.

66. Sections 63, 64 and 65 also apply to names entered by way of declaration in the register referred to in Chapter II of the Act respecting the legal publicity of enterprises (chapter P-44.1).

1977, c. 5, s. 66; 1993, c. 48, s. 197; 2010, c. 7, s. 282.

67. Family names, place names, expressions formed by the artificial combination of letters, syllables or figures, and expressions taken from other languages may appear in the names of enterprises to specify them, in accordance with the other Acts and with the regulations of the Government.

1977, c. 5, s. 67; 1993, c. 40, s. 21; 1999, c. 40, s. 45.

Annotations

Québec (Procureure générale) v. Magasins Best Buy ltée , 2015 QCCA 747 (CanLII)

[…]

68. The name of an enterprise may be accompanied with a version in a language other than French provided that, when it is used, the French version of the name appears at least as prominently.

However, in public signs and posters and commercial advertising, the use of a version of a name in a language other than French is permitted to the extent that the other language may be used in such signs and posters or in such advertising pursuant to section 58 and the regulations enacted under that section.

In addition, in texts or documents drafted only in a language other than French, a name may appear in the other language only.

1977, c. 5, s. 68; 1983, c. 56, s. 14; 1988, c. 54, s. 6; 1993, c. 40, s. 22; 1999, c. 40, s. 45.

Annotations

Québec (Procureure générale) v. Magasins Best Buy ltée , 2015 QCCA 747 (CanLII)

[…]

[26] The Attorney General's argument does not take into account section 68 of the Charter:

68. Le nom de l'entreprise peut être assorti d'une version dans une autre langue que le français pourvu que, dans son utilisation, le nom de langue française figure de façon au moins aussi évidente.

Toutefois, dans l'affichage public et la publicité commerciale, l'utilisation d'un nom dans une autre langue que le français est permise dans la mesure où cette autre langue peut, en application de l'article 58 et des règlements édictés en vertu de cet article, être utilisée dans cet affichage ou cette publicité.

En outre, dans les textes ou documents rédigés uniquement dans une autre langue que le français, un nom peut apparaître uniquement dans l'autre langue.

68. The name of an enterprise may be accompanied with a version in a language other than French provided that, when it is used, the French version of the name appears at least as prominently.

In addition, in texts or documents drafted only in a language other than French, a name may appear in the other language only.

[Soulignements ajoutés.]

69. (Repealed).

1977, c. 5, s. 69; 1988, c. 54, s. 7.

70. Health services and social services the names of which, adopted before 26 August 1977, are in a language other than French may continue to use such names provided they add a French version.

1977, c. 5, s. 70.

71. A non-profit organization devoted exclusively to the cultural development or to the defense of the peculiar interests of a particular ethnic group may adopt a name in the language of the group, provided that it adds a French version.

1977, c. 5, s. 71.

Chapter VIII – The Language of Instruction

72. Instruction in the kindergarten classes and in the elementary and secondary schools shall be in French, except where this chapter allows otherwise.

This rule obtains in school bodies within the meaning of the Schedule and in private educational institutions accredited for purposes of subsidies under the Act respecting private education (chapter E-9.1) with respect to the educational services covered by an accreditation.

Nothing in this section shall preclude instruction in English to foster the learning thereof, in accordance with the formalities and on the conditions prescribed in the basic school regulations established by the Government under section 447 of the Education Act (chapter I-13.3).

1977, c. 5, s. 72; 1992, c. 68, s. 138; 1993, c. 40, s. 23.

Annotations

Nguyen v. Quebec (Education, Recreation and Sports), [2009] 3 SCR 208, 2009 SCC 47 (CanLII)

I. Introduction

[1] In these appeals, the Court must consider the constitutionality of recent amendments to the Charter of the French language, R.S.Q., c. C‑11 (“CFL”), regarding the eligibility of particular categories of students to attend English‑language public schools and subsidized private institutions in Quebec. These amendments apply solely to people who have attended unsubsidized private schools and members of families with children who have received instruction in minority language schools pursuant to a special authorization. The impugned provisions, paras. 2 and 3 of s. 73, were added to the CFL in 2002 by the Act to amend the Charter of the French language, S.Q. 2002, c. 28, s. 3 (“Bill 104”).

[2] The first of these amendments provides that periods of attendance at unsubsidized English‑language private schools are to be disregarded when determining whether a child is eligible to receive instruction in the publicly funded English‑language school system. The second amendment establishes the same rule with respect to instruction received pursuant to a special authorization granted by the province under s. 81, 85 or 85.1 CFL in a case involving a serious learning disability, temporary residence in Quebec, or a serious family or humanitarian situation. For the reasons that follow, I conclude that the amendments in issue limit the rights guaranteed by s. 23 of the Canadian Charter of Rights and Freedoms, that these limits have not been justified under s. 1 of the Charter, and that paras. 2 and 3 of s. 73 CFL, which were added by Bill 104, are therefore unconstitutional. I would therefore dismiss the appeals. I would also dismiss the respondents’ cross‑appeals, which relate to incidental issues.

II. Origins of the Cases

A. Evolution of the Problem of Eligibility to Attend English‑Language Public and Private Schools

[3] These two appeals concern the relationship between the CFL and the Canadian Charter. The relevant provisions of the two statutes are reproduced in the Appendix. It is important to briefly review the origins and role of the CFL, and in particular to consider questions relating to the choice of the language of instruction in Quebec. The CFL is legislation of major importance in Quebec. Under it, French has the status of the official language of Quebec, and it contains a body of rules that apply to the use of French and of English in areas under the legislative authority of Quebec’s National Assembly. The CFL therefore provides the general framework for access to public education in English in Quebec. In principle, French is recognized, in s. 72 CFL, as the common official language of instruction in elementary and secondary schools in Quebec. In the CFL, the provisions authorizing instruction in English are treated as an exception to this general principle. […]

[4] The current provisions of the CFL on the language of instruction resulted from a long series of political debates and legal challenges. In 1969, the Quebec legislature enacted the Act to promote the French language in Québec, S.Q. 1969, c. 9, in which the primacy of French as the language of instruction was affirmed, although parents were left free to choose the language of instruction of their children. In 1974, Quebec revised its freedom of choice policy and limited access to instruction in English to children capable of demonstrating sufficient knowledge of the English language in tests administered by the province (Official Language Act, S.Q. 1974, c. 6). But difficulties encountered in the administration of those tests prompted the legislature to once again rethink its policy on the language of instruction. It enacted the CFL in 1977. At that time, the legislature reaffirmed the general principle that instruction in Quebec was given in French and established four situations in which, as exceptions to the general rule, parents could send their children to English schools (s. 73). Following the enactment of the Canadian Charter in 1982, the provisions of the CFL on instruction in the minority language were the subject of a major constitutional challenge (Attorney General of Quebec v. Quebec Association of Protestant School Boards, 1984 CanLII 32 (SCC), [1984] 2 SCR 66). This Court held at that time that the Charter of the French language violated s. 23 of the Canadian Charter because it defined the classes of persons entitled to instruction in the minority language too narrowly. In particular, under the version of s. 73 then in force, instruction received in English in Quebec was recognized, but instruction received elsewhere in Canada was not. The categories established in s. 73 CFL were therefore too restrictive in relation to those provided for in and protected by s. 23 of the Canadian Charter, and the Court declared the provisions in issue to be unconstitutional.

[5] In 1993, the Quebec legislature amended ss. 72 and 73 CFL to comply with this Court’s decision. As a result of those amendments, in accordance with s. 23 of the Canadian Charter, credit would now be given for instruction received in English elsewhere in Canada. However, one condition was imposed in this respect: instruction received in the minority language had to constitute the major part of the instruction received in Canada. A series of special cases were provided for to permit provincial authorities to grant special authorizations in specific situations (ss. 81, 85 and 85.1 CFL).

[6] At that time, no concern was shown in the CFL for unsubsidized private schools (“UPSs”). However, such schools have played an increasingly significant role in Quebec’s education system. They are not subject to the province’s rules respecting the language of instruction (s. 72, para. 2 CFL). Any child can therefore enrol in one and receive elementary and secondary instruction in English there. Before Bill 104’s amendments to the CFL in 2002, the administrative practice of the Ministère de l’Éducation du Québec was to consider periods of instruction received in a UPS in determining whether a child was eligible for English-language instruction in public schools and subsidized private schools.

[7] The 2002 amendments to the CFL were a response to the concerns of the Quebec government and of a portion of Quebec public opinion regarding the growing phenomenon of [TRANSLATION] “bridging schools” (écoles passerelles). According to the government, more and more parents whose children were not entitled to instruction in the minority language were enrolling their children in UPSs for short periods so that they would be eligible — on a literal reading of s. 73 CFL and in light of the administrative practice of the Ministère de l’Éducation — to attend publicly funded English schools. In the government’s view, parents who did so were circumventing all the rules relating to the language of instruction, and the result was to enlarge the categories of rights holders under s. 23 of the Canadian Charter. Thus, it was in response to concerns about the extent of this practice that the National Assembly enacted Bill 104 in 2002.

Gosselin (Tutor of) v. Quebec (Attorney General), [2005] 1 SCR 238, 2005 SCC 15 (CanLII)

[19] In 1977, the Charter of the French language was adopted. At the time of its inception, ss. 72-73 read as follows:

72. Instruction in the kindergarten classes and in the elementary and secondary schools shall be in French, except where this chapter allows otherwise.

[...]

73. In derogation of section 72, the following children, at the request of their father and mother, may receive their instruction in English:

(a) a child whose father or mother received his or her elementary instruction in English, in Québec;

(b) a child whose father or mother, domiciled in Québec on the date of the coming into force of this act, received his or her elementary instruction in English outside Québec;

(c) a child who, in his last year of school in Québec before the coming into force of this act, was lawfully receiving his instruction in English, in a public kindergarten class or in an elementary or secondary school;

(d) the younger brothers and sisters of a child described in paragraph c.

After adoption of the Canadian Charter in 1982, a constitutional challenge was launched against the 1977 legislation. In Attorney General of Quebec v. Quebec Association of Protestant School Boards, 1984 CanLII 32 (SCC), [1984] 2 SCR 66, our Court concluded that the categories set out in s. 73 of the Charter of the French language were underinclusive with reference to s. 23 of the Canadian Charter, and adopted the view that:

[translation] Section 73 of the Charter of the French language does not limit the right conferred by s. 23: rather, it constitutes a permanent alteration of the classes of citizens who are entitled to the protection afforded by that section. By laying down conditions of access which run directly counter to those expressly stated in s. 23, and which by their very nature have the effect of permanently depriving an entire class of individuals of the right conferred by s. 23, s. 73 alters the very content of that right. . . . [p. 87]

The constitutional deficiency resulted precisely from the absence of a provincial geographical limitation from s. 23 of the Canadian Charter.

[20] Following the successful court challenge to the 1977 Act, s. 23 of the Canadian Charter directly governed access to English instruction in Quebec from 1984 to 1993. However, in 1993, the Quebec legislature re-enacted ss. 72 and 73 of the Charter of the French language in light of this Court’s decision in Quebec Association of Protestant School Boards. In the companion appeal of Casimir, we consider the constitutional challenge to the amended s. 73 of the Charter of the French language.

A.S. v. Québec (Ministre de l’Éducation, du Loisir et du Sport), 2009 QCCA 613 (CanLII) [judgment available in French only]

[OUR TRANSLATION]

[8] Once again, the appeal raises the question of a child’s right to receive instruction in Quebec in the language of the minority.

[9] The unique nature of the case lies in the fact that the appellant is not challenging the constitutional validity of the amendments made in 2002 to section 73 of the Charter of the French Language (C.F.L.).

[10] Consequently, the appeal must be determined on the basis of three key provisions, more specifically subsection 2 of section 23 of the Canadian Charter and the penultimate and last paragraphs of subsection 2 of section 73 of the C.F.L. These sections read as follows: [...]

[11] In terms of principles, the interaction between section 23 of the Canadian Charter and section 73 of the C.F.L. is well known. I will provide a brief overview.

[12] Subsection 23(2) of the Canadian Charter must be interpreted broadly using a purposive approach for it to achieve its objective: “to guarantee the right to continuity of language instruction in the minority language, to preserve the family unit and favour the freedom of movement and establishment”.

[13] This provision has the direct consequence of limiting the jurisdiction of provinces in terms of education. I note that in Quebec, sections 72 and 73 of the C.F.L. define the parameters for exercising the constitutional rights granted by subsection 23(2) of the Canadian Charter. There is, however, an inherent tension between these different legislative provisions.

[14] On one hand, section 72 of the C.F.L. articulates the general rule that instruction is provided in French in kindergarten classes and in elementary and secondary schools. On the other hand, the constitutional rights of members of the minority provided for in paragraph 23(2) of the Canadian Charter appear in the form of exceptions to this general rule and are listed in section 73 of the C.F.L..

[15] The application of section 23 is contextual and may vary based on the linguistic dynamics of each province. The Supreme Court recognizes that Quebec’s provincial government must have the necessary latitude to ensure the protection of the French language in a way that is compatible with the objectives of section 23 of the Canadian Charter.

Szasz v. Lakeshore School Board , 1998 CanLII 12919 (QC CA) [judgment available in French only]

[OUR TRANSLATION]

Background

[5] Since June 1989, the Lakeshore School Board (the School Board) has not offered instruction in French at the secondary level within its territory. For this reason, students from its territory who have the right to instruction in French were transported outside the territory of the School Board and handed over to the Protestant School Board of Greater Montreal, to pursue their studies at its French secondary school, École secondaire française Dorval.

[6] To remedy this situation, the School Board adopted two resolutions (No. 96-01-05 & No. 96-01-06) intended to establish a French secondary school within its own territory. Due to the limited resources of the School Board, this new school, called École secondaire Pointe-Claire (ESPC), was established in a building that was already hosting an English secondary school called “John Rennie High School” (JRHS).

[7] Dissatisfied with the steps taken by the School Board, the appellant challenged the validity of the above resolutions by way of an action seeking a declaration of invalidity. In a judgment rendered on March 25, 1996, the Superior Court (the Honourable Justice Louis S. Tannenbaum) recognized the validity of the deed of establishment of École secondaire Pointe-claire, as formulated in resolution No. 96-01-05, while imposing additional conditions on the School Board: it was to appoint a school principal for ESPC and specify “those parts and rooms” in the building housing the two secondary schools that would be used by ESPC, and do so within four months of the judgment. However, the Honourable Justice Tannenbaum declared resolution No. 96-01-06, as well as the part of resolution No. 96-01-05 relating to the creation of an administrative partnership, to be null because those decisions did not comply with the provisions of the Education Act. There was no appeal of the decision by Judge Tannenbaum.

[8] In response to the decision by Justice Tannenbaum, the School Board engaged in a consultation process with representatives from both schools, which resulted in the development of draft deeds of establishment for ESPC and JRHS. These deeds provide for the exclusive use of a majority of the classrooms by either of the two schools, the exclusive and alternate use of another group of rooms such as workshops, laboratories, technology classrooms and gymnasiums, and the joint and shared use of certain facilities such as the library, cafeteria and reception. In a nutshell, they provide for the establishment of both schools in the same building and sometimes in the same rooms.

[9] The appellant challenged the draft deeds of establishment in a letter addressed to the School Board dated May 23, 1996. In the letter, the appellant claimed that the draft deeds of establishment did not comply with the conditions listed in the Education Act because they did not reserve, for ESPC, the exclusive use of all the rooms made available to it.

[…]

[15] On August 9, 1996, the Honourable Justice Trahan granted a motion for declaratory judgment and recognized the validity of the draft deeds of establishment under the Education Act. She also allowed a motion de bene esse by granting the School Board additional time to respond to the orders made by Justice Tannenbaum. The appellant’s counterclaim was allowed in part for the sole purpose of declaring necessary the adoption by resolution of the draft deeds of establishment.

[…]

[36] Finally, the appellant claims that he is entitled to demand a French school that is separate from an English school. In reaching this conclusion, the appellant relies upon (1) sections 6 and 72 of the Charter of the French Language which provide that instruction in secondary schools must be provided in French; (2) the testimony of Marc-Philippe Vincent, a teacher, who, for pedagogical reasons, opposes the School Board’s plan; and (3) Chapter 3 of the Education Act, which guarantees the school the distinct status necessary to achieve its mission of providing instruction in French in a French context.

[…]

[44] In response to the constitutional arguments raised by the appellant, the School Board submits that segregation is not necessary to allow certain students to exercise their right to receive instruction in French (section 72 of the Charter of the French Language). The School Board claims that the legislation relating to the guarantee protects the right to instruction in French, and not the right to instruction in French in a physically separate environment.

[…]

[68] In addition, no provision in the Education Act, or in sections 6 and 72 of the Charter of the French Language, which provide for instruction in French, requires this instruction to be given in a building where all the rooms are intended for the exclusive use of the French school. [...]

Annotations

Nguyen v. Quebec (Education, Recreation and Sports), [2009] 3 SCR 208, 2009 SCC 47 (CanLII)

I. Introduction

[1] In these appeals, the Court must consider the constitutionality of recent amendments to the Charter of the French language, R.S.Q., c. C-11 (“CFL”), regarding the eligibility of particular categories of students to attend English‑language public schools and subsidized private institutions in Quebec. These amendments apply solely to people who have attended unsubsidized private schools and members of families with children who have received instruction in minority language schools pursuant to a special authorization. The impugned provisions, paras. 2 and 3 of s. 73, were added to the CFL in 2002 by the Act to amend the Charter of the French language, S.Q. 2002, c. 28, s. 3 (“Bill 104”).

II. Origins of the Cases

A. Evolution of the Problem of Eligibility to Attend English‑Language Public and Private Schools

[8] The respondents submit that these amendments violate the rights guaranteed by s. 23 of the Canadian Charter, and they accordingly ask this Court to declare that paras. 2 and 3 of s. 73 CFL are unconstitutional. The Nguyen case relates specifically to the UPS issue, while the Bindra case relates to the granting of special authorizations by the province.

[…]

[12] The ATQ heard the two appeals before this Court rendered its decision in Solski (Tutor of) v. Quebec (Attorney General), 2005 SCC 14 (CanLII), [2005] 1 SCR 201. In that case, the Court had to determine the meaning of the words “major part” in s. 73 CFL in order to identify the educational pathway (parcours scolaire) needed for a child to be eligible for instruction in the English‑language public school system. It held that, in order to be consistent with the objectives of s. 23 of the Canadian Charter, the “major part” requirement had to entail a qualitative, rather than a strictly quantitative, assessment of the child’s educational pathway. I will return to Solski below because of its importance to the outcome of the appeals.

[…]

IV. Constitutional Questions

[21] In orders dated May 20, 2008, the Chief Justice stated the following constitutional questions:

In the Nguyen case:

(1) Does the second paragraph of s. 73 of the Charter of the French language, R.S.Q., c. C‑11, infringe s. 23(2) of the Canadian Charter of Rights and Freedoms?

(2) If so, is the infringement a reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society under s. 1 of the Canadian Charter of Rights and Freedoms?

In the Bindra case:

(1) Does the third paragraph of s. 73 of the Charter of the French language, R.S.Q., c. C‑11, infringe s. 23(2) of the Canadian Charter of Rights and Freedoms?

(2) If so, is the infringement a reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society under s. 1 of the Canadian Charter of Rights and Freedoms?

[…]

[32] In the protection afforded by the Canadian Charter, no distinction is drawn as regards the type of instruction received by the child, as to whether the educational institution is public or private, or regarding the origin of the authorization pursuant to which instruction is provided in a given language. Rather, s. 23(2) of the Canadian Charter reflects a factual reality in which language rights are protected when, in light of the child’s overall situation and of an analysis of the child’s educational pathway that is both subjective and objective, it is determined that the child is receiving or has received instruction in one of Canada’s two official languages. It is therefore the fact that a child has received instruction in a language that makes it possible to exercise the constitutional right. Moreover, this interpretation is compatible with the primary objective of s. 23(2): to promote continuity of language instruction.

[33] The inability to assess a child’s educational pathway in its entirety in determining the extent of his or her educational language rights has the effect of truncating the child’s reality by creating a fictitious educational pathway that cannot serve as a basis for a proper application of the constitutional guarantees. In Solski, this Court stated that the child’s entire educational pathway must be taken into account in order to determine whether it meets the requirements of s. 23(2) of the Canadian Charter. If an entire portion of the educational pathway is omitted from the analysis because of the nature or origin of the instruction received, it is impossible to conduct the global analysis of the child’s situation and educational pathway required by Solski.

[34] Where both UPSs and special authorizations issued by the province are concerned, the children are in fact receiving or have in fact received instruction in English and fall, in principle, within the categories of rights holders under s. 23(2). According to Solski, on a proper interpretation of this provision, it is necessary to conduct a comprehensive analysis of the educational pathways of children whose parents wish to avail themselves of the constitutional guarantees. I accordingly find that paras. 2 and 3 of s. 73 CFL limit the respondents’ rights in both appeals. But it remains to be determined whether, as the appellants argue, this limit can be justified in a free and democratic society pursuant to s. 1 of the Canadian Charter.

[35] Before discussing the application of s. 1, however, I consider it necessary at this point to add some comments about my conclusion that certain provisions of the CFL limit the respondents’ constitutional rights. As this Court has previously noted, the framers did not intend, in enacting s. 23, to re‑establish freedom of choice of the language of instruction in the provinces. However, a literal application of s. 23(2) could lead to this result and render the CFL’s provisions on the language of instruction meaningless. Moreover, it would be hard to reconcile a literal application with the concept of a genuine educational pathway, which is a fundamental consideration in determining whether someone belongs to the categories of rights holders. This Court also noted this problem in Solski (paras. 39 and 48).

[36] The “bridging” schools appear in some instances to be institutions created for the sole purpose of artificially qualifying children for admission to the publicly funded English‑language school system. When schools are established primarily to bring about the transfer of ineligible students to the publicly funded English‑language system, and the instruction they give in fact serves that end, it cannot be said that the resulting educational pathway is genuine. However, it is necessary to review the situation of each institution, as well as the nature of its clientele and the conduct of individual clients. As delicate as this task may be, this is the only approach that will make it possible to comply with the framers’ objectives while averting, especially in Quebec, a return to the principle of freedom of choice of the language of instruction that the framers did not intend to impose (Gosselin, at paras. 2, 30 and 31).

[…]

[41] The main problem that arises in determining whether the impugned provisions are constitutional relates to the proportionality of the adopted measures. Even if a rational connection is found to exist between the impugned measures and the objective of the legislation, it is necessary to take the analysis further and ask whether the means chosen by the legislature constitute a minimal impairment, as defined in the case law, of the constitutional rights guaranteed by s. 23(2) of the Canadian Charter. In my opinion, the measures that are contested in the Nguyen and Bindra cases are excessive in relation to the objectives being pursued, and do not meet the standard of minimal impairment.

[42] […] The evidence shows that the number of children who become eligible for admission to the English-language public school system after attending a UPS remains relatively low, although it does seem to be gradually increasing. For example, in the 2001-2 school year, according to statistics provided by the Ministère de l’Éducation for the entire province of Quebec, just over 2,100 students enrolled in English-language UPSs at the pre-school, elementary and secondary levels throughout Quebec did not have certificates of eligibility for instruction in English (A.R., at p. 1605). Thus, before Bill 104 came into force, the time they spent in these institutions could have qualified them for a transfer to the publicly funded English-language system. This represents just over 1.5 percent of the total number of students eligible for instruction in English that year (Rapport sur l’évolution de la situation linguistique au Québec, 2002‑2007, at p. 82). This number has since increased. The number of students attending English-language UPSs who did not have certificates of eligibility exceeded 4,000 in the 2007-8 school year (A.R., at p. 1605). Despite this increase, however, the number of students in question remains relatively low in relation to the numbers of students in the English- and French-language school systems. In view of this situation, although I do not deny the importance of the purpose of para. 2 of s. 73 CFL, the absolute prohibition on considering an educational pathway in a UPS seems overly drastic. What is happening is not a de facto return to freedom of choice with disruptive changes to the categories of rights holders. The legislature could have adopted different solutions that would involve a more limited impairment of the guaranteed rights and could more readily be reconciled with the concrete contextual approach recommended in Solski.

[…]

[45] The situations in issue in the Bindra case also concern a relatively small number of children. According to the statistics provided by the appellants, it appears that between 1990 and 2002, an average of 7.1 percent of students eligible for English instruction were eligible owing to a special authorization issued by the province under ss. 81, 85 and 85.1 CFL (Rapport sur l’évolution de la situation linguistique au Québec, 2002-2007, at p. 90). Although it is impossible to determine with any accuracy what proportion of those students subsequently obtained certificates of eligibility under s. 73, para. 1(2) CFL, I note that a large majority of them were eligible because they were staying temporarily in Quebec and had obtained special authorizations on that basis under s. 85 CFL. Moreover, it must not be forgotten that the special authorizations mechanism remains wholly within the authority of the Quebec government, which can therefore grant authorizations that exceed what it is constitutionally obligated to grant, but cannot, after doing so, deny any rights flowing from the authorizations in question that are guaranteed by the Canadian Charter. The provisions added to the CFL by Bill 104 that apply to Mr. Bindra’s case are not consistent with the principle of preserving family unity provided for in s. 23(2) of the Canadian Charter. In fact, they are likely to make it impossible for children of a family to receive instruction in the same school system.

F. Remedies

[46] I must therefore find that the limit on the respondents’ constitutional rights was not justified under s. 1 of the Canadian Charter. I would therefore uphold the Quebec Court of Appeal’s declaration that paras. 2 and 3 of s. 73 CFL are invalid. Because of the difficulties this declaration of invalidity may entail, I would suspend its effects for one year to enable Quebec’s National Assembly to review the legislation. However, it is also necessary to consider the situations of the claimants concerned in the two appeals.

[…]

VI. Disposition

[50] The appeals are dismissed with costs. The cross‑appeals are dismissed without costs. I will not grant the special fee requested by the respondents. I would answer the constitutional questions as follows:

In the Nguyen case:

(1) Does the second paragraph of s. 73 of the Charter of the French language, R.S.Q., c. C‑11, infringe s. 23(2) of the Canadian Charter of Rights and Freedoms?

Yes.

(2) If so, is the infringement a reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society under s. 1 of the Canadian Charter of Rights and Freedoms?

No.

In the Bindra case:

(1) Does the third paragraph of s. 73 of the Charter of the French language, R.S.Q., c. C‑11, infringe s. 23(2) of the Canadian Charter of Rights and Freedoms?

Yes.

(2) If so, is the infringement a reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society under s. 1 of the Canadian Charter of Rights and Freedoms?

No.

Okwuobi v. Lester B. Pearson School Board; Casimir v. Quebec (Attorney General); Zorrilla v. Quebec (Attorney General), [2005] 1 SCR 257, 2005 SCC 16 (CanLII)

II. Background and Judicial History

[2] This appeal emerged out of several disputes about entitlement to minority language education. In each case, the claimants attempted to bypass the administrative process and move the dispute to the Superior Court of Quebec. What follows is a brief review of the facts of each case and the outcomes at the Superior Court, followed by a review of the outcome of the joint appeal to the Quebec Court of Appeal.

[…]

[25] Section 14 of the Act respecting administrative justice sets out the scope and the exclusive nature of the jurisdiction of the ATQ [Administrative Tribunal of Québec]:

14. The Administrative Tribunal of Québec is hereby instituted.

The function of the Tribunal, in the cases provided for by law, is to make determinations in respect of proceedings brought against an administrative authority or a decentralized authority.

Except where otherwise provided by law, the Tribunal shall exercise its jurisdiction to the exclusion of any other tribunal or adjudicative body.

According to s. 14, the ATQ has exclusive jurisdiction to make determinations in respect of proceedings brought against an administrative authority. The term “administrative authority” includes the designated person in matters relating to entitlement to minority language education. When s. 14 of the Act respecting administrative justice is read in conjunction with s. 83.4 of the Charter of the French language, it is clear that the Quebec legislature intended to confer on the ATQ exclusive jurisdiction over all disputes relating to s. 73 of the Charter of the French language. Section 83.4 reads as follows:

83.4. Any decision concerning a child’s eligibility for instruction in English made pursuant to section 73... by a designated person may, within 60 days of notification of the decision, be contested before the Administrative Tribunal of Québec.

[…]

[34] No such express conferral of jurisdiction on another administrative body, or on a court for that matter, can be found in the relevant legislation in this appeal. In fact, the explicit wording of s. 14 of the Act respecting administrative justice, the ATQ’s constituting statute, confers exclusive jurisdiction on the ATQ to decide on minority language education claims brought before it on appeal. This was made clear above and need not be addressed again. Nor does the legislative scheme give rise to an implication to the effect that more complex issues, such as Charter issues, should be decided by a different adjudicative body, such as the Superior Court. The implication is to the contrary. Section 82 authorizes the ATQ to create panels of up to five members in order to deal with more complex issues. This implies that even complex questions of law were meant to be dealt with by the ATQ. Even more revealing in this respect, the overall structure of the ATQ, that of a highly sophisticated, quasi-judicial body, indicates that the legislature intended to have the ATQ deal with all legal issues, big and small. Finally, s. 112 explicitly provides for the proper procedure to follow when raising a constitutional ground before the ATQ. Based on the revised approach from Martin, the only conclusion that can be drawn is that the ATQ has the capacity to consider and decide constitutional questions, including the conformity of s. 73 of the Charter of the French language with s. 23 of the Canadian Charter.

Gosselin (Tutor of) v. Quebec (Attorney General), [2005] 1 SCR 238, 2005 SCC 15 (CanLII)

[9] At the outset, we emphasize that the appellant parents do not qualify as rights holders under s. 23 of the Canadian Charter or s. 73 of the Charter of the French language. They did not receive their primary school instruction in Canada in English and their children are receiving or have received all of their instruction in French in Quebec. Their situation, therefore, is fundamentally and constitutionally different from that of the appellants in the companion case, Solski (Tutor of) v. Quebec (Attorney General), [2005] 1 SCR 201, 2005 SCC 14 (CanLII) (sub nom. Casimir v. Quebec (Attorney General) (hereinafter Casimir)).

[10] The appellants are in a position no different from the majority of Quebec residents who receive or have received their primary and secondary instruction in French. Nonetheless, they claim that the categories of rights holders implemented by the Charter of the French language are discriminatory and should be reformed to permit them to enrol their children in English language instruction in Quebec. As members of the French language majority in Quebec, they seek to use the right to equality to access a right guaranteed in Quebec only to the English language minority.

[…]

A. Section 73 of the Charter of the French Language

[13] In advancing their claim, the appellants put aside the linkage between s. 73 of the Charter of the French language and s. 23 of the Canadian Charter. Section 23 may be part of the Constitution, they argue, but s. 73 is not, and like any other statute must comply with equality guarantees. At the oral hearing, counsel for the appellants argued that:

. . . implementing legislation of a constitutional obligation under 23 does not immunize from judicial review an argument based on the Quebec Charter of Rights [for] an equal access to existing public institutions when that is interpreted in the way that we propose.

(Mr. Tyler’s response, oral transcript, at p. 95)

[14] We do not agree. The linkage is fundamental to an understanding of the constitutional issue. Otherwise, for example, any legislation under s. 91(24) of the Constitution Act, 1867 (“Indians, and Lands reserved for the Indians”) would be vulnerable to attack as race-based inequality, and denominational school legislation could be pried loose from its constitutional base and attacked on the ground of religious discrimination. Such an approach would, in effect, nullify any exercise of the constitutional power: Adler, at para. 39; Reference re Bill 30, An Act to amend the Education Act (Ont.), 1987 CanLII 65 (SCC), [1987] 1 SCR 1148, at pp. 1197 and 1206.

[…]

[16] The appellants misconceive the objective of s. 73 of the Charter of the French language when they submit that “[t]he stated purpose and effect of the provisions of the CFL is to first distinguish and then exclude entire categories of children from a public service” (appellants’ factum, at para. 48 (emphasis in original)). The purpose of s. 73 is not to “exclude” but rather to implement the positive constitutional responsibility incumbent upon all provinces to offer minority language instruction to its minority language community. It is from this perspective that the present appeal must be considered.

B. Legislative Background to the Charter of the French Language

[17] There was a time in Quebec’s history when parents had “free access” (in law, although not always in practice) to either French or English language instruction for their children. Such access was, of course, subject to availability. In 1969, the Quebec legislature adopted the Act to promote the French language in Québec, S.Q. 1969, c. 9 (Bill 63), which affirmed French as the primary language of instruction and obliged school boards to offer courses in French. However, it also reaffirmed that parents could continue to select the language of instruction of their children.

[18] For a variety of reasons related to the protection of the French language and culture, the Quebec legislature, in 1974, revised its policy on access to English language instruction. The Official Language Act, S.Q. 1974, c. 6 (Bill 22), affirmed French as the language of instruction in Quebec. To access English language instruction, a child had to demonstrate “a sufficient knowledge” of the English language (s. 41), which was assessed by language tests administered by the Ministry of Education. Difficulties encountered in the administration of language tests prompted the Quebec legislature again to rethink its policy.

[19] In 1977, the Charter of the French language was adopted. […]

[20] Following the successful court challenge to the 1977 Act, s. 23 of the Canadian Charter directly governed access to English instruction in Quebec from 1984 to 1993. However, in 1993, the Quebec legislature re-enacted ss. 72 and 73 of the Charter of the French language in light of this Court’s decision in Quebec Association of Protestant School Boards. In the companion appeal of Casimir, we consider the constitutional challenge to the amended s. 73 of the Charter of the French language.

C. The Right to Equality Is Not Opposable to Section 23 of the Canadian Charter

[21] In Mahe v. Alberta, 1990 CanLII 133 (SCC), [1990] 1 SCR 342, this Court explained that any analysis of minority language instruction must take as its starting point the guarantees provided in s. 23 in the Canadian Charter. The reasoning found at p. 369 of the reasons of the Chief Justice in Mahe apply here with equal force:

Section 23 provides a comprehensive code for minority language educational rights; it has its own internal qualifications and its own method of internal balancing. A notion of equality between Canada’s official language groups is obviously present in s. 23. Beyond this, however, the section is, if anything, an exception to the provisions of ss. 15 and 27 in that it accords these groups, the English and the French, special status in comparison to all other linguistic groups in Canada. . . . [I]t would be totally incongruous to invoke in aid of the interpretation of a provision which grants special rights to a select group of individuals, the principle of equality intended to be universally applicable to “every individual”. [Emphasis added.]

As noted earlier, s. 23 could also be viewed not as an “exception” to equality guarantees but as their fulfilment in the case of linguistic minorities to make available an education according to their particular circumstances and needs equivalent to the education provided to the majority (Arsenault-Cameron, at para. 31).

[22] The appellants in this case are attempting to accomplish precisely that which Mahe said was prohibited, namely the use of equality guarantees to modify the categories of rights holders under s. 23. The attempt was rejected in Mahe, albeit in different circumstances, and should be rejected again in this appeal.

Solski (Tutor of) v. Quebec (Attorney General), [2005] 1 SCR 201, 2005 SCC 14 (CanLII)

[1] The Court — The issue in this case is whether the Quebec legislature’s attempt to define the categories of rights holders provided for under s. 23 of the Canadian Charter of Rights and Freedoms by means of the “major part” requirement set out in s. 73 of Quebec’s Charter of the French language, R.S.Q., c. C-11 (“CFL”), is an unconstitutional restriction of these rights. In our view, it is not; the term “major” must however be read so that it is given a “qualitative” meaning rather than a “quantitative” meaning. We would consequently allow the appeal in part.

[…]

[13] The judgment of the Quebec Court of Appeal from which this appeal stems involved three families who requested certificates of eligibility to allow their child or children to attend public English-language schools pursuant to s. 73 of the CFL. The requests were denied on the ground that the child or children had not completed the “major part” of their instruction in the minority language.

[…]

[17] […] Specifically, the Solskis asked the Court to declare (1) that s. 73(2) of the CFL is inconsistent with s. 23 of the Canadian Charter to the extent that the “major part” criterion narrows the category of eligible rights holders; and (2) that the Solski children are entitled under s. 23(2) to receive their secondary school education in English in Quebec. […]

[24] The main question in this appeal is to decide the proper interpretation of s. 23(2) of the Canadian Charter and whether the CFL’s “major part” threshold is consistent with this constitutional requirement. […]

[28] Based on the proper interpretation of s. 23(2), which we will set out in detail below, we are of the view that in order to comply with this constitutional provision, the CFL’s “major part” requirement must involve a qualitative rather than a strict quantitative assessment of the child’s educational experience through which it is determined if a significant part, though not necessarily the majority, of his or her instruction, considered cumulatively, was in the minority language. Indeed, the past and present educational experience of the child is the best indicator of genuine commitment to a minority language education. The focus of the assessment is both subjective, in that it is necessary to examine all of the circumstances of the child, and objective, in that the Minister, the ATQ and the courts must determine whether the admission of a particular child is, in light of his or her personal circumstances and educational experience, past and present, consistent with the general purposes of s. 23(2) and, in particular, the need to protect, preserve and reinforce the minority language community by granting individual rights to a specific category of beneficiaries.

[…]

[34] The application of s. 23 is contextual. It must take into account the very real differences between the situations of the minority language community in Quebec and the minority language communitie of the territories and the other provinces. The latitude given to the provincial government in drafting legislation regarding education must be broad enough to ensure the protection of the French language while satisfying the purposes of s. 23. As noted by Lamer C.J. in Reference re Public Schools Act (Man.), at p. 851, “different interpretative approaches may well have to be taken in different jurisdictions, sensitive to the unique blend of linguistic dynamics that have developed in each province”.

[35] The pertinent question, then, is whether the “major part” requirement is consistent with the purpose of s. 23(2) and capable of ensuring that the children meant to be protected will actually be admitted to minority language schools. In our view, the “major part” requirement as interpreted by the ATQ is underinclusive; it does not achieve the purpose of s. 23(2) and, therefore, cannot be said to complete it or to act as a valid substitute for it. Thus, the “major part” requirement cannot be saved unless it is interpreted such that the word “major” is given a qualitative rather than a quantitative meaning.

[36] Reading down s. 73 to keep it within the permissible scope of s. 23 of the Canadian Charter (Clark v. Canadian National Railway Co., 1988 CanLII 18 (SCC), [1988] 2 SCR 680; Derrickson v. Derrickson, 1986 CanLII 56 (SCC), [1986] 1 SCR 285; R. v. Sharpe, [2001] 1 SCR 45, 2001 SCC 2 (CanLII)) is warranted in cases where the “bulk of the legislative policy to be accomplished [is allowed], while trimming off those applications that are constitutionally bad”: P. W. Hogg, Constitutional Law of Canada (4th ed. 1997), at p. 401. Reading down is also consistent with the presumption that legislation is enacted to comply “with the norms embodied in Canada’s entrenched Constitution”: R. Sullivan, Sullivan and Driedger on the Construction of Statutes (4th ed. 2002), at p. 367.

[37] The strict mathematical approach lacks flexibility and may even exclude a child from education vital to maintaining his or her connection with the minority community and culture. For example, a child who has completed grades 1, 2 and 3 in French and grades 4, 5 and 6 in English may have formed a sufficient link with the minority language community, but would not qualify under s. 73(2). It might also be that the language learned in the last three years may provide a better marker than that learned in the first three years. Too many relevant factors are ignored. In short, the strict approach mandated by the Minister of Education fails to deal fairly with many persons who must be qualified under a purposive interpretation of s. 23(2) of the Canadian Charter.

[…]

[43] In determining whether a child’s education experience is sufficient to meet the requirements of s. 23(2), it is also important to consider the past and present availability of minority language education programs. For example, if a child completes grade 1 in the minority language but then spends the next three school years in an area where minority language is unavailable, it is clear that he or she has not received the “major part” of his or her education to date in the minority language under the restrictive interpretation of s. 73 of the CFL. However, under a purposive interpretation of s. 23(2) of the Canadian Charter, the time spent in the majority language educational system, when a minority language school was unavailable, ought not to be considered as indicative of a choice to adopt the majority language as the child’s language of instruction. One aspect of the purpose of s. 23(2) is to accommodate mobility. This purpose would be frustrated and parents and their children, as well as the minority language community as a whole, would be unjustly penalized if children were barred from continuing with instruction in the minority language once they moved to an area in which it was available again simply because they temporarily lived in an area in which it was unavailable. There again it is obvious that the situation of students moving to Quebec will be unique, the availability of instruction in English in the territories and other provinces being unquestioned. As mentioned earlier, the geographical context is always important.

[…]

[56] Accordingly, we would declare that s. 73(2) of the CFL is valid but must be read so that the term “major” is given a qualitative meaning.

A.G. (Que.) v. Quebec Protestant School Boards , [1984] 2 SCR 66, 1984 CanLII 32 (SCC)

I – Introduction

[pp. 68-69] The question is whether the provisions regarding instruction in English contained in Chapter VIII of the Charter of the French language, R.S.Q. 1977, c. C-11, and in the regulations adopted thereunder, are inconsistent with the Canadian Charter of Rights and Freedoms and of no force or effect to the extent of the inconsistency.

The applicable legislative and constitutional provisions must first be considered.

Chapter VIII of the Charter of the French language (“Bill 101”), which came into effect on August 26, 1977, is entitled “The Language of Instruction”. At the time the proceedings were initiated, it consisted of seventeen sections, 72 to 88 inclusive. However, ss. 72 and 73 are at the heart of the matter, and only they need be cited: […]

[…]

III – Inconsistency between ss. 72 and 73 of Bill 101 and s. 23 of the Charter

[pp. 75-77] It is not disputed that ss. 72 and 73 of Bill 101 and s. 23 of the Charter are inconsistent. Nevertheless, it is useful to indicate exactly the nature and extent of this inconsistency. The trial judge made a comparative study of the applicable legislative and constitutional provisions, and described this inconsistency in language the accuracy of which, at least in general terms, does not appear to have been disputed. He said the following, at pp. 681 and 682 of his judgment:

[TRANSLATION] Section 72 of Bill 101 enunciates the principle unambiguously: “Instruction…shall be in French, except where this chapter allows otherwise.”

Section 73 provides the only exceptions which are of interest in this case. “In derogation of section 72”: the words at the beginning of s. 73 clearly indicate that it is an exception. Applying traditional canons of construction, s. 73 should receive a restrictive interpretation: only those who fall within the four categories enumerated in s. 73 are to be admitted to English schools.

We are familiar with these categories since the court has already quoted the section.

In the first category, the right follows from father or mother to son or daughter on condition that the mother or father received his or her primary education in English in Quebec.

In the three other categories, still subject to the “Quebec condition”, the right will gradually fade away to lapse toward the end of the century: all children falling within these three categories should have completed their secondary schooling by then, and only in the case of a genetic accident will the period be extended.

But under s. 73 the children of immigrants, even English-speaking immigrants from other parts of Canada or from foreign countries, are not to be admitted into English schools in Quebec.

Section 73 sets out what has come to be known, in constitutional jargon in these last few years, as the “Quebec clause”.

Undoubtedly, the Minister, Mr. Laurin, had this clause in mind when he spoke, last May 5^th, of the “authentically English-speaking minority of Quebec”.

Without doubt, it was this clause which was contemplated by the White Paper of March, 1977, setting out “La politique québecoise de la langue française” when it described English schooling as “an exceptional system for the present minority in Quebec”.

On the other hand, s. 23 of the Charter, in s-ss. 1(b) and (2)—the only ones, along with s-s. (3) which are in force in Quebec—allows access to English schools to children whose parents, being citizens of Canada resident in Quebec, have received primary instruction in English in Canada or those children of citizens of Canada having a brother or a sister who has received or is receiving primary or secondary instruction in English in Canada.

Subsection (3) of the same section makes this right subject to the condition of “a sufficient number” of children, etc., but this condition presents no problem in Quebec.

In the same constitutional jargon, s. 23 of the Charter sets out the “Canada clause” in the general sense.

How should these two clauses be compared?

Paragraphs (a) and (b) of s. 73 of Bill 101 are included in s. 23(1)(b) of the Charter, if the condition of citizenship is fulfilled; if not, Bill 101 is more permissive than the Charter.

Paragraphs (c) and (d) of s. 73 are included within s. 23(2) of the Charter, on the same condition; if not, again it would be necessary to consider Bill 101 as broader than the Charter.

In short, for those who are citizens of Canada, all cases contemplated by s. 73 of Bill 101 are equally covered by the Charter; for non-naturalized aliens Bill 101 is more generous.

Up to this point the applicants cannot complain of any contradiction. But, what of the inverse situation?

Section 23 of the Charter only applies to citizens of Canada: one must keep this premise constantly in mind.

Section 23(1)(b) opens English schooling in Quebec to children whose parents have received their primary instruction in English anywhere in Canada.

This general eligibility is prohibited in Quebec by the combined effect of ss. 72 and 73 of Bill 101.

Section 23(2) of the Charter opens English schooling in Quebec to children of citizens of Canada who have a brother or sister who has received or is receiving primary or secondary instruction in English anywhere in Canada.

This general eligibility is, again, denied by the effect of the same provisions of Bill 101.

The conclusion, then, is inevitable: Bill 101 and the Charter are incompatible.

[…]

[pp. 80-82] Until 1969, the laws of Quebec appear to have been silent on the language of instruction, but in fact the system operated so as to leave almost complete freedom to everyone at all educational levels. Following the conflict that occurred in 1968 at the Saint-Léonard school board, where an attempt had been made to impose instruction in French on children of Italian immigrants—see Joseph Eliot Magnet, “Minority-Language Educational Rights”, (1982) 4 Supreme Court L.R. 195, at p. 202—the Quebec legislator adopted the Act to promote the French language in Québec, 1969 (Que.), c. 9, also known as Bill 63. Despite its title, this Act embodied in legislation the freedom of choice regarding language of instruction which had existed up to then. However, the Quebec legislator indicated a concern with immigration in s. 3, where it directed the Minister of Immigration to…in co-operation with the Minister of

Education, take the measures necessary so that the persons who settle in Québec may acquire the knowledge of the French language upon arrival or even before they leave their country of origin, and may have their children instructed in educational institutions where courses are given in the French language.

This Act was replaced in 1974 by the Official Language Act, 1974 (Que.), c. 6, also known as Bill 22. Title 1 of this Act stated in its single section that French is the official language of Quebec. Chapter V of Title III is entitled “The Language of Instruction”. Sections 40 and 41 gave French a certain degree of priority. The first paragraph of s. 40 provided that the language of instruction shall be French in the schools governed by the school boards, the regional school boards and the corporations of trustees, and the second paragraph stated that school boards, regional school boards and corporations of trustees “shall continue” to provide instruction in English. The third paragraph provided for control over increasing or reducing instruction in English by the Minister of Education, who was not to give his authorization “unless he considers that the number of pupils whose mother tongue is English and who are under the jurisdiction of such body warrants it”. Section 41 provided that pupils must have a sufficient knowledge of the language of instruction to receive their instruction in that language, which had the practical effect of closing off French schooling to the majority of Anglophone pupils and English schooling to the majority of Francophone pupils. Section 41 also provided that pupils who do not have a sufficient knowledge of any of the languages of instruction must receive their instruction in French, a provision which, though it did not say so expressly, was directed at immigrants, unless they were French- or English-speaking.

These provisions of the Official Language Act were found to be intra vires by Deschênes C.J.S.C. in Bureau métropolitain des écoles protestantes de Montréal v. Ministre de l’Éducation du Québec, [1976] C.S. 430, 83 D.L.R. (3d) 645. The Court of Appeal of Quebec dismissed an appeal on the ground that the Official Language Act had been replaced by Bill 101: (1978), 83 D.L.R. (3d), at p. 679, see note.

Thus, at the time the Charter was adopted, there had for some years been legislation in Quebec which, apart from the Act adopted in 1969, tended to give preferred treatment to French as the language of instruction, and correspondingly to lessen the benefits hitherto given to English, in fact if not in law. The culmination of this legislation was Bill 101.

[…]

[pp. 82-83] It is above all when we compare s. 23(1)(b) and (2) of the Charter with s. 73 of Bill 101 that it becomes most apparent that the latter is the type of regime on which the framers of the Constitution modelled s. 23. Both in the Charter and in Bill 101, the criteria that must be considered in deciding the right to instruction in the minority language are the place where the parents received their instruction in the minority language. Both in the Charter and in Bill 101, that place is where the parents received their primary school instruction. Both in the Charter and in Bill 101, satisfying this criterion gives a right to primary and secondary school instruction in the minority language, and Bill 101 adds the right to education at the kindergarten level. Both in the Charter and in Bill 101, the criteria also include the language of instruction of a child’s brothers and sisters, though Bill 101 refers to the younger brothers and sisters of children included in a category which is temporary by nature,—a limit not found in the Charter.

[…]

[p. 84] By incorporating into the structure of s. 23 of the Charter the unique set of criteria in s. 73 of Bill 101, the framers of the Constitution identified the type of regime they wished to correct and on which they would base the remedy prescribed. The framers’ objective appears simple, and may readily be inferred from the concrete method used by them: to adopt a general rule guaranteeing the Francophone and Anglophone minorities in Canada an important part of the rights which the Anglophone minority in Quebec had enjoyed with respect to the language of instruction before Bill 101 was adopted.

If, as is apparent, Chapter VIII of Bill 101 is the prototype of regime which the framers of the Constitution wished to remedy by adopting s. 23 of the Charter, the limits which this regime imposes on rights involving the language of instruction, so far as they are inconsistent with s. 23 of the Charter, cannot possibly have been regarded by the framers of the Constitution as coming within “such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”. Accordingly, the limits imposed by Chapter VIII of Bill 101 are not legitimate limits within the meaning of s. 1 of the Charter to the extent that the latter applies to s. 23.

[…]

[p. 86] Now, the real effect of s. 73 of Bill 101 is to make an exception to s. 23(1)(b) and (2) of the Charter in Quebec; yet those subsections are not provisions to which exceptions can be made under s. 33(1) and (2) of the Charter. In addition, s. 73 of Bill 101 directly alters the effect of s. 23 of the Charter for Quebec, without following the procedure laid down for amending the Constitution.

The rights stated in s. 23 of the Charter are guaranteed to very specific classes of persons. This specific classification lies at the very heart of the provision, since it is the means chosen by the framers to identify those entitled to the rights they intended to guarantee. In our opinion, a legislature cannot by an ordinary statute validly set aside the means so chosen by the framers and affect this classification. Still less can it remake the classification and redefine the classes.

[…]

[p. 88] […] What matters is the effective nature and scope of s. 73 in light of the provisions of the Charter, whenever the section was enacted. If, because of the Charter, s. 73 could not be validly adopted today, it is clearly rendered of no force or effect by the Charter and this for the same reason, namely the direct conflict between s. 73 of Bill 101 and s. 23 of the Charter. The provisions of s. 73 of Bill 101 collide directly with those of s. 23 of the Charter, and are not limits which can be legitimized by s. 1 of the Charter. Such limits cannot be exceptions to the rights and freedoms guaranteed by the Charter nor amount to amendments of the Charter. An Act of Parliament or of a legislature which, for example, purported to impose the beliefs of a State religion would be in direct conflict with s. 2(a) of the Charter, which guarantees freedom of conscience and religion, and would have to be ruled of no force or effect without the necessity of even considering whether such legislation could be legitimized by s. 1. The same applies to Chapter VIII of Bill 101 in respect of s. 23 of the Charter.

This other method of interpretation, based on the true nature and effects of Chapter VIII of Bill 101 in light of the Charter provisions, takes an opposite route to that based on the purpose of the framers, but leads to the same result: Chapter VIII is of no force or effect.

H.N. v. Québec (Ministre de l’Éducation), 2007 QCCA 1111 (CanLII)

I – INTRODUCTION

[12] The appellants, all Canadian citizens, challenge the constitutional validity of section 72 of the Charter of the French Language ("the CFL") and an amendment to section 73 of the CFL enacted by section 3 of An Act to amend the Charter of the French Language ("Bill 104"). The effect of the amendment is to require that instruction in English received by children of Canadian citizens in an unsubsidized private school in Quebec be disregarded as "instruction in English" for the purposes of determining their admissibility to public schools in which the language of instruction is English. The appellants contend that this exclusion violates their rights under section 23(2) of the Canadian Charter of Rights and Freedoms.

[…]

A) The evolution of sections 72 and 73 CFL

[20] The CFL was enacted and assented to on August 26, 1977. Chapter VIII of Title I still contains the main provisions that deal with the language of instruction in Quebec schools. Since 1977, sections 72 and 73, which are the cornerstones of Chapter VIII, have undergone some amendments that are not in issue in this appeal. Only the one brought about by section 3 Bill of 104 is germane to the questions to be decided by the Court.

[21] In 1977, there was no fetter on the exclusive legislative authority of the provincial legislature to adopt legislation in relation to education within the province, except for sub‑sections (1) and (2) of section 93 of the Constitution Act, 1867 relating to denominational and dissentient schools. Those sub‑sections, now inapplicable to Quebec, did not however affect the right of the provincial legislature to enact valid legislation relating to the language of instruction in Quebec schools.

[…]

[24] Section 23(1)(a) of the Canadian Charter is not in force in Quebec pursuant to section 59(1) of the Constitution Act, 1982. Nevertheless, it is immediately apparent that the provisions of the CFL I have set out in paragraph [22] were considerably different insofar as access to instruction in English is concerned than those of sections 23(1)(b) and 23(2) of the Canadian Charter. Despite the fact that the Government of Quebec did not consent to the adoption of the Constitution Act, 1982, even though it nevertheless applied in Quebec, the Government of Quebec ignored the provisions of section 23 of the Canadian Charter and continued to apply those of the CFL instead, without distinction between citizens and non‑citizens.

[25] This position led to the institution of legal proceedings by the Quebec Association of Protestant School Boards and others contesting the validity of sections 72 and 73 CFL to the extent of their inconsistency with section 23 of the Canadian Charter. The Superior Court, this Court and the Supreme Court of Canada all concluded that the impugned provisions of the CFL were invalid to the extent of such inconsistency, and found that they and other restrictions on minority language education rights elsewhere in Canada were precisely what the framers had in mind when adopting section 23 of the Canadian Charter. In so doing, the submission of the Attorney General of Quebec that the infringement could be justified as a reasonable limit under section 1 of the Canadian Charter was also rejected.

[26] The effect of the Supreme Court's final judgment was to require the Government of Quebec to apply section 23 of the Canadian Charter to eligible Canadian citizens irrespective of sections 72 and 73 CFL. These provisions, as subsequently amended, continued to apply, however, to ineligible Canadian citizens, and to non‑citizens.

[…]

C) Events leading to the adoption of Bill 104 and relevant statistics

[31] Given the importance of both ensuring the protection of Canadian Charter rights and the security of the French language in Quebec, it is important to situate the context in which Bill 104 was adopted.

[32] Until the coming into force of Bill 104 on October 1, 2002, the Minister of Education had issued certificates of eligibility for instruction in English for the benefit of children of parents who were Canadian citizens who did not qualify under section 23(1)(b) of the Canadian Charter, but who had their children educated in unsubsidized English language private schools. According to the information in the record at the time of the hearings before the ATQ [Administrative Tribunal of Quebec] and in the Superior Court, 8,842 such certificates had been issued prior to October 1, 2002 (5,185 initial beneficiaries, plus 3,657 siblings of such children). Between 1977 and 2002, however, some 600,000 certificates of eligibility for instruction in English had been issued, with the result that the proportion of such certificates issued on the basis now proscribed because of Bill 104 was slightly less than 1.5%. When looked at from the perspective of the combined French and English school population, the percentage of such certificates is minuscule. It should also be noted that this phenomenon did not affect the linguistic balance in Quebec, inasmuch as the 8,842 children in question simply remained in the English school system that they had entered legally.

[33] The statistical growth of parents not otherwise eligible to obtain a certificate of eligibility for their children for instruction in English who used the unsubsidized private school route as a means to do so, however, shows steady increases since 1989. In that year, the total cumulative number in the years since the coming into force of the CFL in 1977 was 608, but in the years between 1990 and 2002, the number surged to 8,234. Amongst the total of 8,842 between 1977 and 2002, there were 5,252 Allophone children, 1,940 Anglophone children, 1,498 Francophone children, 146 children whose maternal language could not be determined, and six Aboriginal children.

[34] There was also evidence that some unsubsidized private schools were advertising their ability to offer instruction in English that would result in the children who attended their schools becoming eligible to obtain certificates of eligibility, which could then be used to gain access to the schools in the English language public school system. An illustration of this phenomenon can be seen in the case of the Garvey Institute, which in 2000‑01 had 154 students in Grade One, but only 14 the following academic year in Grade Two.

[35] Against this backdrop it is also relevant to take account of statistics relating to the evolution of the number of students receiving instruction in French and in English between 1977 and 2002. There has been a decrease in both language categories. The English sector decrease has been considerably more dramatic, however, precisely because of the intended effect of sections 72 and 73 CFL, which were designed to direct students into the French sector whose parents might otherwise have chosen to have them attend the English sector, as well as because of the departure from Quebec of so much of its Anglophone population since 1977.

[36] In 1976‑77, the last complete academic year before the CFL was enacted, there were 1,422,660 students in both sectors, with 1,186,102 (83.4%) attending French language schools and 236,558 (16.6%) attending English schools. By 2001‑02, the last complete academic year before the adoption of Bill 104, the total number of students in both sectors had decreased by 304,053 to 1,118,607. Of these, 997,358 (89.2%) were in French language schools, and 121,249 (10.8%) were in English language schools. It will therefore be seen that the number of students attending French language schools increased as a proportion from 83.4% to 89.2%, while the corresponding number of students attending English language schools decreased from 16.6% to 10.8%.

[37] Nevertheless, the actual number of students attending English language schools in Quebec remained essentially stable between 1986‑87 (120,818) and 2001‑02 (121,249), although there were several years in the 1990s when the numbers were considerably lower. The actual number of students attending French language schools decreased very slightly between 1986‑87 (1,021,105) and 2001‑02 (997,358).

[38] The situation on the Island of Montreal, which has the greatest concentration of Anglophones and Allophones within Quebec, paints a somewhat different picture. During the 1976‑77 academic year, there were 138,144 students attending English language schools, but by the 2001‑02 academic year, that number had dropped sharply by 74,573 to 63,571, a decrease of 54%. During the same period of time, the number of students attending French language schools dropped by 33,564 from 214,876 to 181,312, a decrease of 15.6%.

[39] Overall population figures also show a significant decline in the number of Anglophones in Quebec relative to Francophones and Allophones.

[40] According to census figures in the record, the number of Francophones as a percentage of the Quebec population has varied only slightly between 1951 (82.5%) and 1996 (81.5%), while that of Anglophones in the same period has dropped from 13.8% to 8.8%. In 2001, those percentages also showed essential stability in the Francophone population in Quebec (81.4%), while the decline of the Anglophone population continued unabated (8.3%). In terms of absolute numbers, between 1991 and 1996, Francophones in Quebec showed a positive growth rate of 2.8%, while Anglophones experienced negative growth of minus 0.7%. Between 1996 and 2001, the growth rate for Francophones was again positive at 1.1%, while Anglophones again had negative growth of minus 4.9%.

[41] Needless to say, these same statistics show a growth, both in terms of percentages and absolute numbers, of the Allophone population of Quebec, which has replaced much of the Anglophone exodus from Quebec.

[42] In terms of the language spoken most often at home in Quebec between 1991 and 2001, French showed a very slight increase from 83% to 83.1%, while English declined slightly from 11.2% to 10.5%. The use of languages other than French or English also increased slightly from 5.8% to 6.5%.

[43] Another interesting statistic is that in 2001, 30.1% of Quebec Anglophones had a Francophone spouse. Assuming such Quebec Anglophones would qualify to have their children receive instruction in English pursuant to section 23(1)(b) of the Canadian Charter, this factor might account for the essential stability in the English language school population in 2001‑02 throughout Quebec as a whole to which I have referred in paragraph [37], although it would not explain the greater decrease on the Island of Montreal to which I have referred in paragraph [38].

[44] Finally, Francophones as a percentage of the population of Canada have been decreasing steadily over the years. In 1951, Francophones represented 29% of the Canadian population, but by 2001, that figure had been reduced to 22.9%. Quebec accounted for slightly in excess of 85% of Canada's Francophone population in 2001. During the same period of time, the percentage of Anglophones across the country was unchanged at 59.1%; but, while in 1951 Quebec Anglophones represented 6.7% of the nation's Anglophone population, by 2001 that percentage had been reduced to 3.4%.

[45] A more recent study prepared for Statistics Canada with respect to the departure from and return to Canada is also of interest. The author reports that generally speaking only 0.1% of the Canadian population leaves the country in any year, and that the number in any given year follows economic trends. Quebec Francophones, however, have by a wide margin the lowest rate of departure amongst Canadians, and Quebec Anglophones have a much higher rate of departure than all groups considered within Canada. Correspondingly, of those who do leave Canada, Quebec Francophones are the most likely to return, while Quebec Anglophones are the least likely to do so.

[46] Interprovincial migration statistics present an analogous portrait. In the 30 years prior to the 2001 census, Quebec experienced a net loss of approximately 276,000 Anglophones, an extremely high number when it is considered that in 1971, there were approximately 789,000 Anglophone Quebecers. Quebec Francophones are far less inclined to leave Quebec, and to the extent they do leave, their departure is largely compensated by the arrival of Francophones from elsewhere in Canada.

[47] Another feature concerning the demographic make‑up of Quebec is the considerable role Quebec plays with respect to immigration to Quebec from foreign countries. Since 1991, Quebec has enjoyed the power to determine, in accordance with section 2 of the Canada‑Quebec Accord Relating to Immigration and Temporary Admission of Aliens ("the Accord"), the selection and integration of immigrants "in a manner that respects the distinct identity of Québec". Subject to provisions concerning family reunification and refugees, only immigrants who have first met Quebec's selection criteria will be admitted by Canada for establishing themselves in Quebec. In addition, section 24 of the Accord gives Quebec control over the linguistic and cultural integration of immigrants, subject of course to the guarantee of mobility rights in favour of Canadian citizens and permanent residents provided for in section 6 of the Canadian Charter.

[48] Quebec's criteria for selecting immigrants are set out in An Act respecting immigration to Québec. In addition to establishing the framework for selecting immigrants, this statute requires the responsible minister to establish an integration program, which must also include "linguistic integration services consisting of services of French language instruction and introduction to Québec life" pursuant to sections 3.2.3 and 3.2.4. The statute further enables Quebec under section 3.3(b) to adopt regulations relating to, amongst other criteria, an applicant's "knowledge of languages" and whether an applicant can contribute "to enriching the socio‑cultural or economic heritage of Québec".

[49] Quebec legislators would therefore definitely have had in mind, when considering the adoption of Bill 104, the importance of continuing to secure the protection of the French language in light of the unique situation of Quebec within Canada and North America, and that the provisions relating to education in Chapter VIII of Title I of the CFL are at the heart of achieving that objective. In this context, it is perceived that the public policy goal of integrating newcomers to Quebec's majority Francophone society can best be achieved by requiring the attendance of their children in French language schools.

[50] This was seen as particularly necessary in view of declining birthrates amongst Francophone couples, and the tendency of immigrants to Quebec to overwhelmingly choose to enrol their children in English language schools in the years prior to the abolition of freedom of choice in 1974. The effect of the CFL in this respect has been significant: while only 15% of Allophone children attended French language schools in 1971‑72, that proportion had increased to 80% by 1997‑98.

[51] The challenge to Quebec legislators is thus to achieve an equilibrium between the objective of maintaining a vigorous Francophone society within Quebec, while at the same time implementing the minority language education rights applicable to Quebec that are contemplated by sections 23(1)(b) and 23(2) of the Canadian Charter.

[…]

[110] As far as section 72 CFL is concerned, which enunciates the general principle that instruction in Quebec is given in French, its constitutionality has to be assessed in light of the exceptions to its application that are found in section 73 CFL. The judgment of the Supreme Court having decided in Solski that section 73(2) CFL, when properly interpreted, is constitutional, it cannot be contended seriously that section 72 infringes the Canadian Charter.

[111] The main problem posed is therefore with respect to the addition of the second to last paragraph of section 73 CFL, which requires that attendance at an unsubsidized private school in which the language of instruction is English be disregarded as a factor in determining eligibility of a student to receive instruction in English under section 73(2) CFL, whether in a public school or a subsidized private school.

[112] Several reasons lead me to the conclusion that the appellants are correct in their assertion that the addition to section 73 CFL, as introduced by section 3 of Bill 104, is incompatible with the guarantee in section 23(2) of the Canadian Charter.

[113] It is only fair to mention that the provincial legislature did not have the benefit of the Supreme Court's judgment in Solski when Bill 104 was enacted, nor did the designated persons under the CFL when they made their initial decisions, nor did the ATQ when it rendered its decision. Such was also the case with respect to the judge of the Superior Court who dismissed the appellants' declaratory and judicial review proceedings.

[114] Despite valiant efforts by the respondents' counsel, the reasoning and the result in Solski are such that in my view, the second to last paragraph of section 73 CFL is not consistent with section 23 of the Canadian Charter. This is so especially in light of the fact that the determination on a case‑by‑case basis of applications under section 73(2) CFL, including those of the appellants if the impugned provision does not survive a section 1 analysis, would necessarily require an assessment of the many qualitative factors set out by the Supreme Court in its judgment.

[…]

[142] In my view, the amendment to section 73 CFL introduced by Bill 104 certainly constitutes a significant limitation on rights under section 23(2) of the Canadian Charter, but it does not render section 23(2) wholly inapplicable in the same way that all of Chapter VIII of Title I of the CFL, as originally enacted in 1977, flew in the face of all of section 23 of the Canadian Charter that was applicable to Quebec. I therefore consider it necessary to proceed to the standard analysis under section 1 of the Canadian Charter.

[143] This requires a two-step process: first, whether the legislative objective that the restriction of the guaranteed right seeks to promote is sufficiently important to justify the suppression of the guaranteed right; and, whether the means chosen to attain the objective are proportional to the objective. The latter aspect of the process has three components: first, whether the means chosen are rationally connected to the objective; second, whether the impairment of the guaranteed right is minimal; and third, whether there is proportionality between the legislative objective and the means chosen. A negative answer to any of these enquiries means that the respondents will have failed to discharge the burden incumbent on them.

[…]

[147] Next is the question whether the impairment of the right is minimal. To answer it, reference must again be made to some of the evidence that led to the adoption of the restriction.

[…]

[153] Since the impugned measure requires that any and all instruction received in Quebec in English in unsubsidized private schools be disregarded completely, I cannot subscribe to the proposition that the means were carefully chosen, or that the impairment was minimal. A legislative measure that is designed to treat the children of Canadian citizens who were born in another country in the same way as immigrants who are not Canadian citizens cannot have been carefully chosen, nor can the impairment be minimal when the legislation, by its terms, does not allow for consideration of any other factors in assessing whether a child is entitled to the issuance of a certificate of eligibility, and effectively reads out section 23(2) of the Canadian Charter from application within Quebec. This is even more so the case when the children of Canadian citizens who legally received instruction in English elsewhere in Canada in any school are entitled to apply for a certificate of eligibility under section 23(2), however that instruction was obtained.

[154] Since the adoption of Bill 104, the requirement under section 73(2) CFL of a qualitative assessment instead of a purely quantitative one has been mandated by the Supreme Court's judgment in Solski. Whatever the legislative landscape may have been prior to that judgment, it cannot now be considered reasonable, or a minimal impairment, to prevent the consideration of such a qualitative assessment for the appellants, their children and others similarly situated. This would be the inevitable consequence if the second to last paragraph of section 73 CFL is found to lawfully exclude the appellants and others similarly situated from being so considered, despite its incompatibility with section 23(2) of the Canadian Charter. On the other hand, a declaration of unconstitutionality will nevertheless require the qualitative assessment required by Solski under section 73(2) CFL, carried out in good faith and with a generous approach to the interpretation of those criteria, to exclude those who do not properly belong to the class of beneficiaries of section 23(2). This process should weed out those seeking a quick fix by merely "buying" short‑term attendance at an unsubsidized English language private school, and avoid what the respondents most fear, a return to unrestricted freedom of choice.

[155] Although it is unnecessary to consider the proportionate effect of the impugned provision of Bill 104 in light of my conclusion that the legislation does not minimally impair the right guaranteed under the Charter, I would nevertheless observe that for much the same reason, the effect of the legislation is excessive in the light of the manner in which the Supreme Court has defined the protected right under the Charter in Solski. The Government would therefore also fail on the third branch of the proportionality test.

[156] I therefore conclude that the amendment to section 73 CFL introduced by section 3 of Bill 104 constitutes an infringement of section 23(2) of the Canadian Charter, and is not saved by the application of section 1 of the Canadian Charter.

[…]

[159] Having concluded that section 3 of Bill 104 infringes section 23(2) of the Canadian Charter and is not saved by the application of section 1, it follows that the declaration of nullity of section 43 of Bill 104, as the appellants’ proposed amendment de bene esse solicited on behalf of six of them, becomes unnecessary.

Annotations

Nguyen v. Quebec (Education, Recreation and Sports), [2009] 3 SCR 208, 2009 SCC 47

[5] In 1993, the Quebec legislature amended ss. 72 and 73 CFL to comply with this Court’s decision [Quebec Assn. of Protestant School Boards v. Quebec (Attorney General), [1984] 2 SCR 66]. As a result of those amendments, in accordance with s. 23 of the Canadian Charter, credit would now be given for instruction received in English elsewhere in Canada. However, one condition was imposed in this respect: instruction received in the minority language had to constitute the major part of the instruction received in Canada. A series of special cases were provided for to permit provincial authorities to grant special authorizations in specific situations (ss. 81, 85 and 85.1 CFL).

[…]

[45] The situations in issue in the Bindra case also concern a relatively small number of children. According to the statistics provided by the appellants, it appears that between 1990 and 2002, an average of 7.1 percent of students eligible for English instruction were eligible owing to a special authorization issued by the province under ss. 81, 85 and 85.1 CFL (Rapport sur l’évolution de la situation linguistique au Québec, 2002-2007, at p. 90). Although it is impossible to determine with any accuracy what proportion of those students subsequently obtained certificates of eligibility under s. 73, para. 1(2) CFL, I note that a large majority of them were eligible because they were staying temporarily in Quebec and had obtained special authorizations on that basis under s. 85 CFL. Moreover, it must not be forgotten that the special authorizations mechanism remains wholly within the authority of the Quebec government, which can therefore grant authorizations that exceed what it is constitutionally obligated to grant, but cannot, after doing so, deny any rights flowing from the authorizations in question that are guaranteed by the Canadian Charter. The provisions added to the CFL by Bill 104 that apply to Mr. Bindra’s case are not consistent with the principle of preserving family unity provided for in s. 23(2) of the Canadian Charter. In fact, they are likely to make it impossible for children of a family to receive instruction in the same school system.

82. (Repealed).

1977, c. 5, s. 82; 1983, c. 56, s. 17; 1993, c. 40, s. 32; 1997, c. 43, s. 146; 2002, c. 28, s. 7.

83. (Repealed).

1977, c. 5, s. 83, s. 14; 1983, c. 56, s. 18; 1997, c. 24, s. 7; 1997, c. 43, s. 147; 2002, c. 28, s. 7.

83.1. (Repealed).

1983, c. 56, s. 18; 1997, c. 43, s. 148.

83.2. (Repealed).

1983, c. 56, s. 18; 1997, c. 43, s. 148.

83.3. (Repealed).

1983, c. 56, s. 18; 1997, c. 43, s. 149; 2002, c. 28, s. 7.

83.4. Any decision concerning a child’s eligibility for instruction in English made pursuant to section 73, 76, 81, 85 or 86.1 may, within 60 days of notification of the decision, be contested before the Administrative Tribunal of Québec. The same is true of any decision made pursuant to section 77 or 78.

1997, c. 43, s. 150; 2002, c. 28, s. 8; 2010, c. 23, s. 7.

Annotations

Okwuobi v. Lester B. Pearson School Board; Casimir v. Quebec (Attorney General); Zorrilla v. Quebec (Attorney General), [2005] 1 SCR 257, 2005 SCC 16 (CanLII)

C. Jurisdiction of the ATQ in Respect of Minority Language Education

[24] We turn now to the jurisdiction of the ATQ in respect of minority language education claims. Jurisdiction over claims of this type is essentially derived from the interplay between s. 14 of the Act respecting administrative justice and s. 83.4 of the Charter of the French language.

[25] Section 14 of the Act respecting administrative justice sets out the scope and the exclusive nature of the jurisdiction of the ATQ:

14. The Administrative Tribunal of Québec is hereby instituted.

The function of the Tribunal, in the cases provided for by law, is to make determinations in respect of proceedings brought against an administrative authority or a decentralized authority.

Except where otherwise provided by law, the Tribunal shall exercise its jurisdiction to the exclusion of any other tribunal or adjudicative body.

According to s. 14, the ATQ has exclusive jurisdiction to make determinations in respect of proceedings brought against an administrative authority. The term “administrative authority” includes the designated person in matters relating to entitlement to minority language education. When s. 14 of the Act respecting administrative justice is read in conjunction with s. 83.4 of the Charter of the French language, it is clear that the Quebec legislature intended to confer on the ATQ exclusive jurisdiction over all disputes relating to s. 73 of the Charter of the French language. […]

[26] The respondents correctly note that s. 14 of the Act respecting administrative justice and s. 83.4 of the Charter of the French language effectively round out, or complete, the jurisdiction the ATQ possesses under s. 24 of the Act respecting administrative justice in combination with s. 3, para. 2.1 of Schedule I to that Act. Section 24 states that in matters relating to education, inter alia, the social affairs division of the ATQ is charged with making determinations in respect of the proceedings referred to in s. 3 of Schedule I. Section 3, para. 2.1 of Schedule I states that in matters relating to education, the social affairs division hears and determines “proceedings under section 83.4 of the Charter of the French language”.

[27] The Act respecting administrative justice also speaks directly to the powers the ATQ is meant to possess, in these cases, when adjudicating on minority language education claims. Most importantly, for our purposes, the ATQ has the power, under s. 15, to decide any question of law or fact necessary for the exercise of its jurisdiction. It “may confirm, vary or quash the contested decision and, if appropriate, make the decision which, in its opinion, should have been made initially” (s. 15). It is also significant that under s. 74, the ATQ and its members “are . . . vested with all the powers necessary for the performance of their duties”, including the power to “make any order they consider appropriate to safeguard the rights of the parties”. The Quebec legislature has granted a broad range of remedial powers to the ATQ. Moreover, based on the explicit wording of s. 14, the Quebec legislature intended the Tribunal’s jurisdiction to be exclusive (“the Tribunal shall exercise its jurisdiction to the exclusion of any other tribunal or adjudicative body”).

84. No secondary school leaving certificate may be issued to a student who does not have the speaking and writing knowledge of French required by the curricula of the Ministère de l’Éducation, du Loisir et du Sport.

1977, c. 5, s. 84; 2005, c. 28, s. 195.

85. Children staying in Québec temporarily may, at the request of one of their parents, be exempted from the application of the first paragraph of section 72 and receive instruction in English in the cases or circumstances and on the conditions determined by regulation of the Government. The regulation shall also prescribe the period for which such an exemption may be granted and the procedure to be followed in order to obtain or renew it.

1977, c. 5, s. 85, s. 14; 1983, c. 56, s. 19; 1993, c. 40, s. 33.

Annotations

Nguyen v. Quebec (Education, Recreation and Sports), [2009] 3 SCR 208, 2009 SCC 47 (CanLII)

I. Introduction

[1] In these appeals, the Court must consider the constitutionality of recent amendments to the Charter of the French language, R.S.Q., c. C-11 (“CFL”), regarding the eligibility of particular categories of students to attend English-language public schools and subsidized private institutions in Quebec. These amendments apply solely to people who have attended unsubsidized private schools and members of families with children who have received instruction in minority language schools pursuant to a special authorization. The impugned provisions, paras. 2 and 3 of s. 73, were added to the CFL in 2002 by the Act to amend the Charter of the French language, S.Q. 2002, c. 28, s. 3 (“Bill 104”).

II. Origins of the Cases

A. Evolution of the Problem of Eligibility to Attend English‑Language Public and Private Schools

[…]

[44] Some of the evidence on the use of bridging schools raises doubts regarding the genuineness of many educational pathways, and regarding the objectives underlying the establishment of certain institutions. In their advertising, some institutions suggested that after a brief period there, their students would be eligible for admission to publicly funded English-language schools (A.R., at pp. 1200‑1202). An approach to reviewing files closer to the one established in Solski would make it possible to conduct a concrete review of each student’s case and of the institutions in question. This review would relate to the duration of the relevant pathway, the nature and history of the institution and the type of instruction given there. For example, it might be thought that an educational pathway of six months or one year spent at the start of elementary school in an institution established to serve as a bridge to the public education system would not be consistent with the purposes of s. 23(2) of the Canadian Charter and the interpretation given to that provision in Solski. Moreover, as I mentioned above, this Court expressed reservations in Solski about attempts to create language rights for expanded categories of rights holders by means of short periods of attendance at minority language schools (Solski, at para. 39).

[45] The situations in issue in the Bindra case also concern a relatively small number of children. According to the statistics provided by the appellants, it appears that between 1990 and 2002, an average of 7.1 percent of students eligible for English instruction were eligible owing to a special authorization issued by the province under ss. 81, 85 and 85.1 CFL (Rapport sur l’évolution de la situation linguistique au Québec, 2002-2007, at p. 90). Although it is impossible to determine with any accuracy what proportion of those students subsequently obtained certificates of eligibility under s. 73, para. 1(2) CFL, I note that a large majority of them were eligible because they were staying temporarily in Quebec and had obtained special authorizations on that basis under s. 85 CFL. Moreover, it must not be forgotten that the special authorizations mechanism remains wholly within the authority of the Quebec government, which can therefore grant authorizations that exceed what it is constitutionally obligated to grant, but cannot, after doing so, deny any rights flowing from the authorizations in question that are guaranteed by the Canadian Charter. The provisions added to the CFL by Bill 104 that apply to Mr. Bindra’s case are not consistent with the principle of preserving family unity provided for in s. 23(2) of the Canadian Charter. In fact, they are likely to make it impossible for children of a family to receive instruction in the same school system.

Solski (Tutor of) v. Quebec (Attorney General), [2005] 1 SCR 201, 2005 SCC 14 (CanLII)

[54] The other major concern is with children of immigrants. But children who have immigrated directly to Quebec can only attend English-language school in two circumstances: (1) where a temporary stay certificate pursuant to s. 85 of the CFL has been granted; or (2) where they attend a private, unsubsidized English-language school. The first of these conditions is dealt with in a Regulation respecting the exemption from the application of the first paragraph of section 72 of the Charter of the French language that may be granted to children staying in Québec temporarily, (1997) 129 G.O. II, 1970. This regulation provides for the circumstances in which a child will be exempted from the requirement in s. 72 of the CFL that he or she receive instruction in French. The circumstances contemplated in this regulation can be described as those in which there is no apparent intention to permanently settle in Quebec. The Attorney General of Quebec says essentially that since children who are exempted under s. 85 of the CFL receive the exemption when their family has no apparent intention to settle in Quebec permanently, should their family eventually choose to make Quebec its permanent home, then the time spent in instruction in English under the temporary stay exemption ought to be disqualified from the “major part” calculation. In other words, the time at which immigration (rather than simply a temporary stay) is contemplated should be considered as a fresh start to determine eligibility. As in the case of unsubsidized private schools however, the National Assembly has chosen to deal with this issue in Bill 104 which provides that temporary permits shall be disregarded in the “major part” calculation. Since Bill 104 is not before us, we believe it is best to consider, as in the case of unsubsidized schools, that Quebec must be taken to have accepted that instruction received under such permits should be considered prior to the adoption of Bill 104. During this period, the proper test is evidence of commitment to instruction in the minority language, however it originated. After the 2002 amendment, other considerations are at play and will be dealt with in due course.

85.1. Where warranted by a serious family or humanitarian situation, the Minister of Education, Recreation and Sports may, upon a reasoned request and on the recommendation of the examining committee, declare eligible for instruction in English a child who has been declared non-eligible by a person designated by the Minister.

The request must be filed within 30 days of notification of the unfavourable decision.

The request shall be submitted to an examining committee composed of three members designated by the Minister. The committee shall report its observations and recommendation to the Minister.

The Minister shall specify, in the report referred to in section 4 of the Act respecting the Ministère de l’Éducation, du Loisir et du Sport (chapter M-15), the number of children declared eligible for instruction in English under this section and the grounds on which they were declared eligible.

1986, c. 46, s. 8; 1997, c. 43, s. 151; 2002, c. 28, s. 9; 2005, c. 28, s. 195.

Annotations

Nguyen v. Quebec (Education, Recreation and Sports), [2009] 3 SCR 208, 2009 SCC 47 (CanLII)

I. Introduction

[1] In these appeals, the Court must consider the constitutionality of recent amendments to the Charter of the French language, R.S.Q., c. C-11 (“CFL”), regarding the eligibility of particular categories of students to attend English‑language public schools and subsidized private institutions in Quebec. These amendments apply solely to people who have attended unsubsidized private schools and members of families with children who have received instruction in minority language schools pursuant to a special authorization. The impugned provisions, paras. 2 and 3 of s. 73, were added to the CFL in 2002 by the Act to amend the Charter of the French language, S.Q. 2002, c. 28, s. 3 (“Bill 104”).

II. Origins of the Cases

A. Evolution of the Problem of Eligibility to Attend English‑Language Public and Private Schools

[…]

[45] The situations in issue in the Bindra case also concern a relatively small number of children. According to the statistics provided by the appellants, it appears that between 1990 and 2002, an average of 7.1 percent of students eligible for English instruction were eligible owing to a special authorization issued by the province under ss. 81, 85 and 85.1 CFL (Rapport sur l’évolution de la situation linguistique au Québec, 2002-2007, at p. 90). Although it is impossible to determine with any accuracy what proportion of those students subsequently obtained certificates of eligibility under s. 73, para. 1(2) CFL, I note that a large majority of them were eligible because they were staying temporarily in Quebec and had obtained special authorizations on that basis under s. 85 CFL. Moreover, it must not be forgotten that the special authorizations mechanism remains wholly within the authority of the Quebec government, which can therefore grant authorizations that exceed what it is constitutionally obligated to grant, but cannot, after doing so, deny any rights flowing from the authorizations in question that are guaranteed by the Canadian Charter. The provisions added to the CFL by Bill 104 that apply to Mr. Bindra’s case are not consistent with the principle of preserving family unity provided for in s. 23(2) of the Canadian Charter. In fact, they are likely to make it impossible for children of a family to receive instruction in the same school system.

Odeh v. Québec (Ministère de l'Éducation) (Comité d'examen sur la langue d'enseignement), 2005 QCCA 670 (CanLII)

[5] The appellant Shaker Odeh appeals from a judgment of the Superior Court that dismissed his application to judicially review a decision of the Minister of Education that, in accordance with a recommendation of the Comité d'examen sur la langue d'enseignement ("the Examining Committee") created pursuant to section 85.1 of the Charter of the French Language ("the Charter"), refused his application under that section to have his son Hamzeh educated in English. In order to appreciate the context in which the Minister made his decision and the grounds of attack against it, it is first necessary to relate the particular facts that gave rise to the denial of Mr. Odeh's application and the relevant statutory framework.

[6] Mr. Odeh and his wife are of Jordanian origin. They are the parents of two school‑age children, Ahmed, who was born in May of 1988, and Hamzeh, who was born in August of 1989. In November of 2001, Mr. Odeh, who is an anaesthetist, came to Canada on a temporary work permit that expired on March 11, 2004, and was employed at the Lakeshore General Hospital. Both of his sons had been previously educated in private schools in Jordan in the Arabic language and English. They were immediately enrolled in Kells Academy, an unsubsidized educational institution, which means that the general regime of admissibility to instruction in English provided for in the Charter does not apply to it.

[7] Subsequently, beginning in the 2002 academic year, both Ahmed and Hamzeh obtained permission pursuant to section 85 of the Charter to attend a subsidized English language school until June 30, 2004 because of the perceived temporary nature of Mr. Odeh's stay in Quebec. Accordingly, they both enrolled in Selwyn House, which also is a private school.

[8] On March 3, 2004, the temporary status in Canada of Mr. Odeh and his family changed. He and his family were granted permanent resident status, which had the effect of rendering ineffective the authorization Ahmed and Hamzeh had enjoyed under section 85 of the Charter. At that point, Ahmed was in Grade 10 (Secondary IV), and Ahmed in Grade 9 (Secondary III).

[9] Mr. Odeh then applied to the Ministry of Education, on a basis that is not clear from the record, to have both children continue to attend an English language school. These applications were refused by one of the persons designated by the Minister pursuant to section 75 of the Charter, who wrote to Mr. Odeh that in each case, he might "wish to claim a serious family or humanitarian reason to justify the eligibility of your child for English instruction under section 85.1 of the Charter". Mr. Odeh did so promptly.

[…]

[12] A hearing was held by the Examining Committee on April 26, 2004 to hear from Mr. Odeh, his wife and his two sons, at which time they were interviewed. Although there was no recording of the hearing and thus no transcript as to what transpired, the Court was informed that at such interviews, the scholastic records of the children would have been available at the hearing to all those participating in the process.

[13] The Examining Committee came to different conclusions with respect to the two children.

[…]

[17] The Minister gave effect to these separate recommendations, and on April 30, 2004, he so notified Mr. Odeh. In a final attempt to persuade the Minister to treat both of his sons in the same manner by authorizing Hamzeh to attend an English language school, Mr. Odeh sought the Minister's intervention on August 12, 2004. The Minister referred the request to the Examining Committee, and on September 23, 2004, well after the school year had begun, Mr. Odeh was informed that a review of his request did not disclose any new fact that would result in a change of the Minister's decision.

[…]

[46] First, it is important to note that Mr. Odeh's claim under section 85.1 of the Charter does not engage "language rights" in the constitutional sense of that expression in the same manner as rights under section 23 of the Canadian Charter or section 133 of the Constitution Act, 1867. His request seeks to benefit from a well-circumscribed exception to a provision of general application in the Charter that has no constitutional protection, and which in theory could be repealed without infringing the constitution. Therefore, the broad and purposive interpretative approach to minority language education rights that is consistent with the preservation and promotion of official language minority communities and which operates when considering issues relating to section 23 of the Canadian Charter is not mandatory in this particular context.

[47] As I have mentioned, Mr. Odeh invokes the "best interest" of his son Hamzeh as a basis to judicially review the recommendation of the Examining Committee that was endorsed by the Minister. […]

[48] It is apparent from the foregoing that Mr. Odeh placed considerable emphasis on his belief that the short-term academic success of his sons would be placed in jeopardy by requiring them to attend a French language school, which would have long-term consequences as well. Indeed, he eventually decided to send Hamzeh to an unsubsidized private English language school, Kells Academy, rather than have him attend a French language school.

[49] Mr. Odeh's decision in this respect is perfectly legal, but it changes the reality of the case with which the Court is faced. If Mr. Odeh's appeal is allowed, the Court was informed that Mr. Odeh would attempt to enrol him at Selwyn House, but that if it were dismissed, Hamzeh would continue at Kells Academy. When questioned as to whether Mr. Odeh's appeal had thus become academic, since in any event he will be legally completing his high school diploma in an English language school, counsel for Mr. Odeh informed the Court that Hamzeh's future would be better assured if he attended Selwyn House.

[50] That being said, I propose nevertheless to consider the appeal on the basis that Hamzeh would in fact attend a French language school as a result of the denial of the application under section 85.1 of the Charter, since only a minority of Quebec residents have the means to send their children to private schools, whether or not they are subsidized by the Government.

[51] The members of the Examining Committee had the benefit of interviewing Mr. Odeh, his wife and two children, as well as having access to the scholastic records of both Ahmed and Hamzeh. The basis of the differential treatment the Examining Committee recommended was that while Ahmad had only one year of high school left to complete, the evidence before it showed that Hamzeh, with two years left to complete, would be able to obtain his high school diploma if he were to attend a school where the language of instruction was French.

[…]

[54] I do not for a moment underestimate the immense challenge that Hamzeh or anyone else similarly situated would face in having to complete two years of high school in what, for him, is a third language that he has only recently begun to learn. I also entertain no doubt that in the given circumstances, Hamzeh or any child who was similarly situated would be likely to achieve greater academic success if he was able to pursue his studies in English. The same is also true of children whose first language is English who are Quebec residents who do not qualify for instruction in English under the Charter.

[55] The clear policy and intended effect of the Charter, however, which it does not belong to the courts to question, is to direct such children into the French language school system for the reasons I have mentioned, unless their parents can bring them within one of the Charter's limited exceptions. The operation of the Charter in Hamzeh's case may appear harsh, but the result is the direct consequence of a legislative choice with which the courts are not free to interfere. To decide otherwise on the basis that Hamzeh would do better in an English language school would effectively eviscerate the governing principle of French being the language of instruction in Quebec.

[56] It follows in my view that the recommendation of the Examining Committee, based on the evidence it had before it, is sufficiently reasoned to support its conclusion. It therefore meets the test of reasonableness simpliciter described by Iacobucci, J. in Southam.

[57] I would note, in conclusion, that the Examining Committee did not base its recommendation on a pure mathematical calculation of the number of years Hamzeh had left to complete, but considered instead his perceived ability to successfully complete his schooling in French. Such a pure mathematical calculation, absent other factors, might well offend the standard of the reasonable decision simpliciter, as would the consideration of irrelevant factors.

86. The Government may make regulations extending the scope of section 73 to include such persons as may be contemplated in any reciprocity agreement that may be concluded between the Gouvernement du Québec and another province.

1977, c. 5, s. 86, s. 14; 1993, c. 40, s. 34.

86.1. In addition to the cases provided for in section 73, the Government, by order, may, at the request of one of the parents, authorize generally the following children to receive their instruction in English:

(a) a child whose father or mother received the greater part of his or her elementary instruction in English elsewhere in Canada and, before establishing domicile in Québec, was domiciled in a province or territory that it indicates in the order and where it considers that the services of instruction in French offered to French-speaking persons are comparable to those offered in English to English-speaking persons in Québec;

(b) a child whose father or mother establishes domicile in Québec and who, during his last school year or from the beginning of the current school year, has received primary or secondary instruction in English in the province or territory indicated in the order;

Sections 76 to 79 apply to the persons contemplated in this section.

1983, c. 56, s. 20; 1993, c. 40, s. 35.

87. Nothing in this Act prevents the use of an Amerindic language in providing instruction to the Amerinds, or of Inuktitut in providing instruction to the Inuit.

1977, c. 5, s. 87; 1983, c. 56, s. 21.

88. Notwithstanding sections 72 to 86, in the schools under the jurisdiction of the Cree School Board or the Kativik School Board, according to the Education Act for Cree, Inuit and Naskapi Native Persons (chapter I‐14), the languages of instruction shall be Cree and Inuktitut, respectively, and the other languages of instruction in use in the Cree and Inuit communities in Québec on the date of the signing of the Agreement indicated in section 1 of the Act approving the Agreement concerning James Bay and Northern Québec (chapter C‐67), namely, 11 November 1975.

The Cree School Board and the Kativik School Board shall pursue as an objective the use of French as a language of instruction so that pupils graduating from their schools will in future be capable of continuing their studies in a French school, college or university elsewhere in Québec, if they so desire.

After consultation with the school committees, in the case of the Crees, and with the parents’ committees, in the case of the Inuit, the commissioners shall determine the rate of introduction of French and English as languages of instruction.

With the assistance of the Ministère de l’Éducation, du Loisir et du Sport, the Cree School Board and the Kativik School Board shall take the necessary measures to have sections 72 to 86 apply to children whose parents are not Crees or Inuit. For the purposes of the second paragraph of section 79, a reference to the Education Act is a reference to section 450 of the Education Act for Cree, Inuit and Naskapi Native Persons.

This section, with the necessary modifications, applies to the Naskapi of Schefferville.

1977, c. 5, s. 88; 1983, c. 56, s. 22, s. 51; 1988, c. 84, s. 548; 2005, c. 28, s. 195.

Chapter VIII.1 – Policies of College or University-Level Institutions Regarding the Use and Quality of the French Language

2002, c. 28, s. 10.

88.1. Before 1 October 2004, every institution that provides college instruction, other than a private institution not accredited for the purposes of subsidies, must adopt a policy applicable to college-level instruction regarding the use and quality of the French language. The same applies to the university-level institutions listed in paragraphs 1 to 11 of section 1 of the Act respecting educational institutions at the university level (chapter E-14.1).

Any institution to which the first paragraph applies that is founded or accredited after 1 October 2002 must adopt such a policy within two years after it is founded or receives accreditation.

2002, c. 28, s. 10.

88.2. In the case of an institution that provides college or university instruction in French to the majority of its students, the language policy must pertain to

(1) the language of instruction, including the language of manuals and other instructional tools, and the language of learning assessment instruments;

(2) the language of communication used by the administration of the institution in its official texts and documents as well as in any other form of communication;

(3) the quality of French and the command of the French language among the students, the teaching staff, especially upon hiring, and other staff members;

(4) the language of work; and

(5) the implementation of the policy and the monitoring of its application.

In the case of an institution that provides college or university instruction in English to the majority of its students, the language policy must pertain to the teaching of French as a second language, the language used by the administration of the institution in its written communications with the civil administration and legal persons established in Québec, and the implementation of the policy and the monitoring of its application.

2002, c. 28, s. 10.

88.3. The language policy of an educational institution must be transmitted to the Minister of Higher Education, Research, Science and Technology as soon as it is determined. The same applies to any amendment to the policy.

Upon request, an educational institution must transmit a report on the application of its policy to the Minister.

2002, c. 28, s. 10; 2005, c. 28, s. 195; 2013, c. 28, s. 201.

Chapter IX – Miscellaneous

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

1977, c. 5, s. 89.

Annotations

Devine v. Quebec (Attorney General), [1988] 2 SCR 790, 1988 CanLII 20 (SCC)

[27] The remaining sections, 52 and 57, if they are preserved, neither cause unintended results in the overall legislative scheme, nor conflict with s. 2(b) of the Canadian Charter or s. 3 of the Quebec Charter as interpreted in Ford. Their subsistence does not cause unintended results because they are not dependent on s. 58 for their meaning, as were ss. 59, 60 and 61. Similarly, their continued existence does not infringe either Charter because, while ss. 52 and 57 provide for the publication of such items as catalogues, brochures, order forms and invoices in French, they do not require the exclusive use of French. Section 89 makes it clear that where exclusive use of French is not explicitly required by the Act, the official language and another language may be used together. Following the reasons in Ford, permitting joint use passes the scrutiny required by s. 1 of the Canadian Charter and s. 9.1 of the Quebec Charter. The rational connection between protecting the French language and assuring that the reality of Quebec is communicated through the "visage linguistique" by requiring signs to be in French was there established. The same logic applies to communication through such items as brochures, catalogues, order forms and invoices, and the rational connection is again demonstrated. 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. It now remains to discuss whether ss. 52 and 57 are contrary to s. 10 of the Quebec Charter, and whether s. 57 is contrary to ss. 15 and 1 of the Canadian Charter.

VI – Do the Challenged Provisions of the Charter of the French Language Infringe the Guarantee Against Discrimination Based on Language is s. 10 of the Quebec Charter of Human Rights and Freedoms or, Where Applicable, the Guarantee of Equality in s. 15 of the Canadian Charter of Human Rights and Freedoms?

[…]

[30] […] While it is true that s. 9.1 does not apply to the principle of equality enshrined in s. 10, it does apply to the guarantee of free expression enshrined in 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. Here, sections 52 and 57 do create a distinction based on language of use but do not have the effect of impairing or nullifying rights guaranteed under s. 3. They thus conform to the Quebec Charter. This result is consistent with the reasons of the majority, written by Lamer J., in a recent judgment of this Court, Forget v. Quebec (Attorney General), [1988] 2 SCR 90. That case concerned the application of certain provisions of the Charter of the French Language and the regulations thereunder which required an appropriate knowledge of French for entry into a professional corporation and provided non-francophones with a means of establishing that they met the requirement by, inter alia, taking a French proficiency test. Although Lamer J. found that the testing procedure had a differential effect on non-francophones and therefore created a distinction based on language of use, he also found that the distinction in no way impaired the right, enshrined in s. 17 of the Quebec Charter, to be admitted to a professional corporation without discrimination. The right guaranteed by s. 17 necessarily contemplated reasonable admission criteria, including French language proficiency and reasonable measures designed to ensure that candidates for admission were proficient. In coming to this conclusion, Lamer J. did not import s. 9.1 into s. 10. Rather, having found a distinction on a ground prohibited by s. 10, he asked whether the distinction impaired the right guaranteed under s. 17 and came to the conclusion that it did not given the scope of the right to be admitted to a professional corporation without discrimination.

[31] This leaves the question as to whether s. 57 is contrary to ss. 15 and 1 of the Canadian Charter. Section 15 of the Canadian Charter was invoked by the appellant only before this Court, although the Attorney General of Quebec did agree that constitutional questions be stated and that s. 15 should be in issue. Nevertheless, we do not have the benefit of reasons from the Court of Appeal or from the Superior Court interpreting the application of s. 15 to s. 57. Nor has this Court yet rendered any judgment interpreting the meaning of s. 15. It is not necessary in this case to discuss whether s. 57 is prima facie in breach of s. 15. We have already determined that it is prima facie in breach of s. 2(b). The only question that remains to be answered is whether the application of s. 1 would be any different if there were a prima facie breach of s. 15 in this case. More specifically, the question becomes whether the proportionality test laid down in R. v. Oakes, [1986] 1 SCR 103, and restated by Dickson C.J. in R. v. Edwards Books and Art Ltd., [1986] 2 SCR 713, would yield a different result in this case if the prima facie breach in issue were a breach of the rights guaranteed under s. 15. We have already determined that the requirement of joint use of French is rationally connected to the legislature's pressing and substantial concern to ensure that the "visage linguistique" of Quebec reflects the predominance of the French language. Does this requirement impair as little as possible the right to equality before and under the law and the right to equal protection and benefit of the law without discrimination? Is it designed not to trench on that right so severely that the legislative objective is nevertheless outweighed by the abridgment of rights? By ensuring that non-francophones can draw up application forms for employment, order forms, invoices, receipts and quittances in any language of their choice along with French, s. 57, read together with s. 89, creates, at most, a minimal impairment of equality rights. Although, as the appellant contended, the requirement of joint use of French might create an additional burden for non-francophone merchants and shopkeepers, there is nothing which impairs their ability to use another language equally. Thus, the conclusion we have reached with respect to the operation of s. 1 stands even if the prima facie breach of the Canadian Charter at issue is a breach of s. 15.

156158 Canada inc. c. Attorney General of Quebec , 2017 QCCA 2055 (CanLII)

N.B. – An application for leave to appeal has been filed with the Supreme Court of Canada

90. Subject to section 7, anything that, by prescription of an Act of Québec or an Act of the British Parliament having application to Québec in a field of provincial jurisdiction, or of a regulation or an order in council, must be published in French and English may be published in French alone.

Similarly, anything that, by prescription of an Act, a regulation or an order in council, must be published in a French newspaper and in an English newspaper, may be published in a French newspaper alone.

1977, c. 5, s. 90; 1993, c. 40, s. 36.

91. Where this Act authorizes the drafting of texts or documents both in French and in one or more other languages, the French version must be displayed at least as prominently as every other language.

1977, c. 5, s. 91.

92. Nothing prevents the use of a language in derogation of this Act by international organizations designated by the Government or where international usage requires it.

1977, c. 5, s. 92, s. 14.

93. In addition to its other regulation-making powers under this Act, the Government may make regulations to facilitate the administration of the Act, including regulations defining the terms and expressions used in the Act or defining their scope.

1977, c. 5, s. 93, s. 14; 1993, c. 40, s. 37.

94. (Repealed).

1977, c. 5, s. 94, s. 14; 1993, c. 40, s. 38.

95. The following persons and bodies have the right to use Cree and Inuktitut and are exempt from the application of this Act, except sections 87, 88 and 96:

(a) persons qualified for benefit under the Agreement indicated in section 1 of the Act approving the Agreement concerning James Bay and Northern Québec (chapter C‐67), in the territories envisaged by the said Agreement;

(b) bodies to be created under the said Agreement, within the territories envisaged by the Agreement;

(c) bodies of which the members are in the majority persons referred to in subparagraph a, within the territories envisaged by the Agreement.

This section, with the necessary modifications, applies to the Naskapi of Schefferville.

1977, c. 5, s. 95; 1983, c. 56, s. 51.

96. The bodies envisaged in section 95 must introduce the use of French into their administration, both to communicate in French with the rest of Québec and with those persons under their administration who are not contemplated in subparagraph a of that section, and to provide their services in French to those persons.

During a transitional period of such duration as the Government may fix after consultation with the persons concerned, sections 16 and 17 of this Act do not apply to communications of the civil administration with the bodies envisaged in section 95.

This section, with the necessary modifications, applies to the Naskapi of Schefferville.

1977, c. 5, s. 96, s. 14.

97. The Indian reserves are not subject to this Act.

The Government, by regulation, shall determine the cases, conditions and circumstances where or whereunder an agency or body contemplated in the Schedule is authorized to make an exception to the application of one or several provisions of this Act in respect of a person who resides or has resided on a reserve, a settlement in which a native community lives or on Category I and Category I-N lands within the meaning of the Act respecting the land regime in the James Bay and New Québec territories (chapter R-13.1).

1977, c. 5, s. 97; 1983, c. 56, s. 23; 1993, c. 40, s. 39.

98. The various agencies of the civil administration, and the health services and social services, the public utility enterprises and the professional orders referred to in this Act are listed in the Schedule.

1977, c. 5, s. 98; 1994, c. 40, s. 457; 1999, c. 40, s. 45.

Title II – Linguistic Officialization, Toponymy and Francization

Chapter I

Repealed, 2002, c. 28, s. 12.

2002, c. 28, s. 12.

99. (Repealed).

1977, c. 5, s. 99; 2002, c. 28, s. 13.

Chapter II – Linguistic Officialization

100. (Repealed).

1977, c. 5, s. 100; 1993, c. 40, s. 40; 1997, c. 24, s. 8; 1999, c. 40, s. 45; 2002, c. 28, s. 14.

101. (Repealed).

1977, c. 5, s. 101, s. 14; 1997, c. 24, s. 9; 2002, c. 28, s. 14.

102. (Repealed).

1977, c. 5, s. 102; 1978, c. 15, s. 140; 1983, c. 55, s. 161; 2000, c. 8, s. 242; 2002, c. 28, s. 14.

103. (Repealed).

1977, c. 5, s. 103; 1978, c. 15, s. 133, s. 140; 1983, c. 55, s. 161; 2002, c. 28, s. 14.

104. (Repealed).

1977, c. 5, s. 104, s. 14; 2002, c. 28, s. 14.

105. (Repealed).

1977, c. 5, s. 105; 1997, c. 24, s. 10.

106. (Repealed).

1977, c. 5, s. 106, s. 14; 1999, c. 40, s. 45; 2002, c. 28, s. 14.

106.1. (Repealed).

1997, c. 24, s. 11; 2002, c. 28, s. 14.

107. (Repealed).

1977, c. 5, s. 107; 2002, c. 28, s. 14.

108. (Repealed).

1977, c. 5, s. 108; 2002, c. 28, s. 14.

109. (Repealed).

1977, c. 5, s. 109; 2002, c. 28, s. 14.

110. (Repealed).

1977, c. 5, s. 110, s. 14; 1996, c. 2, s. 113; 2002, c. 28, s. 14.

111. (Repealed).

1977, c. 5, s. 111; 2002, c. 28, s. 14.

112. (Repealed).

1977, c. 5, s. 112; 1993, c. 40, s. 41; 1997, c. 24, s. 12; 2002, c. 28, s. 14.

113. (Repealed).

1977, c. 5, s. 113; 1993, c. 40, s. 42; 2002, c. 28, s. 14.

114. (Repealed).

1977, c. 5, s. 114, s. 14; 1985, c. 30, s. 24; 1993, c. 40, s. 43; 1997, c. 24, s. 13; 1999, c. 40, s. 45; 2000, c. 57, s. 10; 2002, c. 28, s. 14.

115. (Repealed).

1977, c. 5, s. 115, s. 14; 2002, c. 28, s. 14.

116. The departments and agencies of the civil administration may establish linguistic committees and determine their composition and operation.

The committees shall identify terminological deficiencies and problematical terms and expressions in their designated field. They shall submit the terms and expressions they favour to the Comité d’officialisation linguistique. The Comité may in turn submit them to the Office québécois de la langue française for standardization or recommendation.

If a department or agency does not establish a linguistic committee, the Office may, on the proposal of the Comité d’officialisation linguistique, make an official request that it do so.

1977, c. 5, s. 116; 1997, c. 24, s. 14; 2002, c. 28, s. 15.

116.1. The Office québécois de la langue française may, on the proposal of the Comité d’officialisation linguistique, recommend or standardize terms and expressions. The Office shall disseminate standardized terms and expressions, in particular through publication in the Gazette officielle du Québec.

2002, c. 28, s. 16.

117. (Replaced).

1977, c. 5, s. 117; 1997, c. 24, s. 14.

118. Upon publication in the Gazette officielle du Québec of the terms and expressions standardized by the Office, their use becomes obligatory in texts, documents, signs and posters emanating from the civil administration and in contracts to which it is a party, and in teaching manuals and educational and research works published in French in Québec and approved by the Minister of Education, Recreation and Sports.

1977, c. 5, s. 118; 1983, c. 56, s. 24; 1985, c. 21, s. 20; 1988, c. 41, s. 88; 1993, c. 51, s. 18; 1994, c. 16, s. 50; 2005, c. 28, s. 195.

118.1. (Repealed).

1993, c. 40, s. 44; 1997, c. 24, s. 15.

118.2. (Repealed).

1993, c. 40, s. 44; 1997, c. 24, s. 15.

118.3. (Repealed).

1993, c. 40, s. 44; 1997, c. 24, s. 15.

118.4. (Repealed).

1993, c. 40, s. 44; 1997, c. 24, s. 15.

118.5. (Repealed).

1993, c. 40, s. 44; 1997, c. 24, s. 15.

119. (Repealed).

1977, c. 5, s. 119; 2002, c. 28, s. 17.

120. (Repealed).

1977, c. 5, s. 120; 2002, c. 28, s. 17.

121. (Repealed).

1977, c. 5, s. 121; 2002, c. 28, s. 17.

Chapter III – The Commission de toponymie

122. A Commission de toponymie is established at the Office québécois de la langue française and is incorporated into it for administrative purposes.

1977, c. 5, s. 122; 2002, c. 28, s. 34.

123. The Commission is composed of seven members, including the chairman, appointed by the Government for not more than five years.

The Government shall fix the remuneration and determine the fringe benefits and other conditions of employment of the members of the Commission.

1977, c. 5, s. 123, s. 14; 1983, c. 56, s. 25; 1993, c. 40, s. 45.

123.1. The members of the Commission remain in office notwithstanding the expiry of their term until they are reappointed or replaced.

1983, c. 56, s. 25.

124. The Commission has jurisdiction to propose to the Government the criteria of selection and rules of spelling of all place names and to make the final decision on the assignment of names to places not already named and to approve any change of place names.

The Government may establish, by regulation, the criteria for the choice of place names, the rules of spelling to be followed in matters relating to toponymy and the method to be followed in choosing and obtaining approval for place names.

1977, c. 5, s. 124; 1993, c. 40, s. 46; 1999, c. 40, s. 45.

125. The Commission shall:

(a) propose to the Government the standards and rules of spelling to be followed in place names;

(b) catalogue and preserve place names;

(d) officialize place names;

(e) publicize the official geographical nomenclature of Québec;

(f) advise the Government on any question submitted by it to the Commission relating to toponymy.

1977, c. 5, s. 125, s. 14; 1993, c. 40, s. 47.

126. The Commission may:

(a) advise the Government and other agencies of the civil administration on any question relating to toponymy;

(b) (subparagraph repealed);

(d) with the consent of the agency of the civil administration having concurrent jurisdiction over the place name, determine or change the name of any place in a local municipal territory.

1977, c. 5, s. 126, s. 14; 1993, c. 40, s. 48; 1996, c. 2, s. 114.

127. The names approved by the Commission during the year must be published at least once a year in the Gazette officielle du Québec.

1977, c. 5, s. 127.

128. Upon the publication in the Gazette officielle du Québec of the names chosen or approved by the Commission, the use of such names becomes obligatory in texts and documents of the civil administration and the semipublic agencies, in traffic signs, in public signs and posters and in teaching manuals and educational and research works published in Québec and approved by the Minister of Education, Recreation and Sports.

1977, c. 5, s. 128; 1985, c. 21, s. 21; 1988, c. 41, s. 88; 1993, c. 51, s. 19; 1994, c. 16, s. 50; 2005, c. 28, s. 195.

Chapter IV – Francization of the Civil Administration

129. Every agency of the civil administration requiring time to comply with certain provisions of this Act or to ensure the generalized use of French in its domain must as soon as possible adopt a francization program under the authority and with the assistance of the Office.

1977, c. 5, s. 129; 1999, c. 40, s. 45.

130. The francization programs must take into account the situation of persons nearing retirement or having a long record of service with the civil administration.

1977, c. 5, s. 130.

131. Every agency of the civil administration must, not later than 180 days after the beginning of its activities, submit to the Office a report including an analysis of the language situation in that agency and an account of the measures it has adopted and those it intends to adopt in view of complying with this Act.

The Office shall determine the form of such report and the information it must furnish.

1977, c. 5, s. 131; 1983, c. 56, s. 26.

132. If the Office considers the adopted or envisaged measures insufficient, it shall give the persons concerned the opportunity to present observations and have the documents and information it considers essential forwarded to it.

It shall prescribe appropriate correctives, if needed.

Any agency refusing to implement such correctives is guilty of an offence.

1977, c. 5, s. 132; 1997, c. 43, s. 152.

133. For a period of not more than one year, the Office may exempt from the application of any provision of this Act any service or agency of the civil administration that requests it, if it is satisfied with the measures taken by that service or agency towards the objectives set by this Act and the regulations.

1977, c. 5, s. 133.

134. (Repealed).

1977, c. 5, s. 134; 1983, c. 56, s. 27; 1992, c. 61, s. 99.

Chapter V – Francization of Enterprises

1999, c. 40, s. 45.

135. This chapter applies to all enterprises, including public utility enterprises.

1977, c. 5, s. 135; 1993, c. 40, s. 49; 1999, c. 40, s. 45.

136. Enterprises employing 100 or more persons must form a francization committee composed of six or more persons.

The francization committee shall analyze the language situation in the enterprise and make a report to the management of the enterprise for transmission to the Office. Where necessary, the committee shall devise a francization program for the enterprise and supervise its implementation. Where a francization certificate is issued to the enterprise, the committee shall ensure that the use of French remains generalized at all levels of the enterprise according to the terms of section 141.

The francization committee may establish subcommittees to assist it in the carrying out of its tasks.

The francization committee shall meet not less than once every six months.

1977, c. 5, s. 136; 1983, c. 56, s. 28; 1993, c. 40, s. 49; 1999, c. 40, s. 45.

137. At least half of the members of the francization committee and of every subcommittee shall be representatives of the workers of the enterprise.

Such representatives shall be designated by the association of employees representing the majority of the workers or, where several associations of employees together represent the majority of the workers, such associations shall designate the representatives by agreement. In the absence of an agreement, or in all other cases, such representatives shall be elected by the whole body of the workers of the enterprise in the manner and on the conditions determined by the management of the enterprise.

The workers’ representatives are designated for a period of not more than two years. However, their term as representatives may be renewed.

1977, c. 5, s. 137; 1983, c. 56, s. 29; 1993, c. 40, s. 49; 1999, c. 40, s. 45; 2002, c. 28, s. 18.

137.1. Workers’ representatives on the francization committee or a subcommittee may, without loss of pay, absent themselves from work for the time required to attend meetings of the committee or subcommittee and to perform any committee or subcommittee task. They shall be deemed to be working and shall be remunerated at the normal rate during that time.

In no case may an employer not remunerate or dismiss, lay off, demote or transfer a worker for the sole reason that the worker took part in committee or subcommittee meetings or tasks.

Any worker who feels aggrieved by an action that is prohibited by the second paragraph may exercise the rights set out in the second or third paragraph of section 45, as the case may be.

2002, c. 28, s. 19.

138. The enterprise shall provide the Office with a list of the members of the francization committee and every subcommittee, and any changes to such list.

1977, c. 5, s. 138; 1993, c. 40, s. 49; 1999, c. 40, s. 45.

138.1. (Replaced).

1983, c. 56, s. 30; 1993, c. 40, s. 49.

139. An enterprise which employs 50 persons or more for a period of six months must register with the Office within six months of the end of that period. For that purpose, the enterprise shall inform the Office of the number of persons it employs and provide it with general information on its legal status and its functional structure and on the nature of its activities.

The Office shall issue a certificate of registration to the enterprise.

Within six months of the date on which the certificate of registration is issued, the enterprise shall transmit an analysis of its linguistic situation to the Office.

1977, c. 5, s. 139; 1983, c. 56, s. 31; 1993, c. 40, s. 49; 1999, c. 40, s. 45; 2002, c. 28, s. 20.

140. If the Office considers, after examining the analysis of the enterprise’s linguistic situation, that the use of French is generalized at all levels of the enterprise according to the terms of section 141, it shall issue a francization certificate.

If, however, the Office considers that the use of French is not generalized at all levels of the enterprise, it shall notify the enterprise that it must adopt a francization program. In the case of an enterprise to which section 139 applies, the Office may, in addition, order the establishment of a francization committee of four or six members; in that case, sections 136 to 138 are applicable with the necessary modifications.

The francization program shall be submitted to the Office within six months of the date on which the notice is received. The program requires the approval of the Office.

1977, c. 5, s. 140; 1983, c. 56, s. 32; 1993, c. 40, s. 49; 1999, c. 40, s. 45; 2002, c. 28, s. 21.

Annotations

Chiasson v. Québec (Procureure générale), 2000 CanLII 18921 (QC CS) [judgment available in French only]

[OUR TRANSLATION]

[1] Does the Charter of the French Language (R.S.Q. c. C-11, hereinafter referred to as the “Act”) authorize the Office de la langue française (the Office) to require an employer to provide software in French only to employees? If so, does the Act then infringe on the rights of the employees guaranteed by the Canadian Charter of Rights and Freedoms or the Quebec Charter of Human Rights and Freedoms?

The Applicants

[2] The applicants are Anglophones and Francophones employed by two pharmaceutical companies located in the Montréal area. With the exception of Alison Baldo, they all work for the same enterprise, which the Court will refer to as the company. None of them are unionized, and they are all members of the Regroupement des employés en milieu pharmaceutique, an association created in 1998 by employees dissatisfied with the francization programs that had been set up or were going to be set up by their employer.

[…]

III. Sufficient interest of the applicants

[37] There is no doubt that one of the applicants’ employers would have sufficient interest to ask the court, while negotiating its francization program with the Office, for a declaratory judgment relating to the scope of the powers of the Office and the content of its obligation to generalize the use of French, most notably regarding its right to install software in a language other than French. This did not happen in this case, as the employers did not initiate the proceedings, did not intervene in the proceedings and have not been impleaded.

[38] Even though the employees are not involved in the negotiations with the Office concerning the francization program that an enterprise must put in place to obtain its certificate (s. 140), except indirectly through a francization committee (ss. 136 and 137), the fact remains that the program concerns them at the highest level since it involves their work environment. The applicants are therefore directly and individually affected by any program that is put in place. Their interest in requesting an interpretation of s. 141(9) exists for the purpose of article 55 C.C.P. (The Lachine General Hospital Corporation et al. c. Procureur général du Québec 1996 CanLII 5944 (QC CA), [1996] R.J.Q. 2804 C.A.; Alliance for Language Communities in Quebec/Alliance pour les communautés au Québec et al. c. Quebec (Attorney General) [1990] R.J.Q. 2623 C.S.).

[…]

VI. The substantive issue

[48] No provision in the Act or any other applicable law forces the employer to provide a computer and software to employees. This decision is for the employer to make by virtue of its management rights.

[49] However, once it decides to provide such work tools, the employer must ensure that the tools respect every employee’s right to be able to work in French (s. 4 of the Act). Logically, this implies that the integrated instructions (for example, the screen pages and help function) and operating manuals must be available in French. Considering the rule of interpretation incorporated into the Act in the form of s. 89, s. 4 cannot be read as prohibiting the provision of multilingual software or manuals that include a French version.

[50] In addition to guaranteeing Quebec workers the right to work in French, the Act prescribes measures aimed at generalizing the use of French in enterprises (ss. 135 to 154).

[51] Counsel for the applicants recognize that this objective is fully compatible with the current sociocultural reality of Quebec, which is no different from the one described by the Supreme Court in the now famous judgment rendered in Ford v. Quebec (A.G.), cited above (La Procureure générale du Québec c. Les entreprises W.F.H. ltée , J.E. 2000-860 (C.S.)).

[52] The instrument which the legislature adopted to ensure the accomplishment of this objective requires any enterprise employing over 50 people to register with the Office, to analyze its linguistic situation, to submit a report on its linguistic situation to the Office and to obtain a certificate of francization from the Office. Failure to comply with this process exposes the enterprise to penalties (ss. 151.1 and 205), in addition to preventing it from benefiting from contracts, advantages and subsidies granted by the government.

[53] Obtaining a certificate from the Office is therefore an important administrative formality for any business subject to the requirement, and the legislature has not granted the Office full discretion in issuing or revoking certificates (s. 147). On the contrary, the Act lists nine elements that the Office must take into consideration in order to make a decision (s. 141) and leaves it up to the government to define by regulation the procedure to be followed for issuing or revoking certificates (s. 148). It follows that even though the Office has the discretionary power to evaluate the use of French within an enterprise, it cannot, upon accepting a program or issuing a francization certificate (s. 140), exercise this power in a manner that fails to comply with the purpose and spirit of the Act (The Lachine General Hospital Corporation et al., cited above, pp. 2821 and following; Alliance for Language Communities in Quebec, cited above, p. 2633) or is contrary to the Constitution and the charters of rights.

[54] In the Court’s opinion, while the Act allows the Office to require the enterprise to set up measures to promote the generalized use of French, it does not allow the Office to penalize the enterprise because of the presence of another language based on any of the nine elements described in s. 141, or to require measures that ban the use of software in another language in order to obtain approval for the francization program.

[55] Therefore, even though s. 140 requires the Office to evaluate the knowledge of French among directors, managers and other members of staff, in accordance with the first two paragraphs of s. 141, it would be absurd to claim that these provisions authorize the Office to give a negative evaluation of the business if the managers and directors also know English, Spanish, Chinese, etc. These two paragraphs also do not mean that the Office can ask the enterprise to prohibit its managers from having discussions in English, Spanish or any other language if they wish to do so; if that was the case, such a request would violate their constitutional right to express themselves in their language of choice (Ford, cited above, p. 748).

141. The francization program is intended to generalize the use of French at all levels of the enterprise through

(1) the knowledge of the official language on the part of management, the members of the professional orders and the other members of the personnel;

(2) an increase, where necessary, at all levels of the enterprise, including the board of directors, in the number of persons having a good knowledge of the French language so as to generalize its use;

(3) the use of French as the language of work and as the language of internal communication;

(4) the use of French in the working documents of the enterprise, especially in manuals and catalogues;

(5) the use of French in communications with the civil administration, clients, suppliers, the public and shareholders except, in the latter case, if the enterprise is a closed company within the meaning of the Securities Act (chapter V‐1.1);

(6) the use of French terminology;

(7) the use of French in public signs and posters and commercial advertising;

(8) appropriate policies for hiring, promotion and transfer;

(9) the use of French in information technologies.

1977, c. 5, s. 141; 1993, c. 40, s. 49; 1994, c. 40, s. 457; 1999, c. 40, s. 45.

Annotations

Chiasson v. Québec (Procureure générale), 2000 CanLII 18921 (QC CS) [judgment available in French only]

[OUR TRANSLATION]

The Applicants

[…]

III. Sufficient interest of the applicants

[…]

VI. The substantive issue

[50] In addition to guaranteeing Quebec workers the right to work in French, the Act prescribes measures aimed at generalizing the use of French in enterprises (ss. 135 to 154).

[51] Counsel for the applicants recognize that this objective is fully compatible with the current sociocultural reality of Quebec, which is no different from the one described by the Supreme Court in the now famous judgment rendered in Ford v. Quebec (A.G.), cited above (La Procureure générale du Québec c. Les entreprises W.F.H. ltée , J.E. 2000-860 (C.S.)).

[53] Obtaining a certificate from the Office is therefore an important administrative formality for any business subject to the requirement, and the legislature has not granted the Office full discretion in issuing or revoking certificates (s. 147). On the contrary, the Act lists nine elements that the Office must take into consideration in order to make a decision (s. 141) and leaves it up to the government to define by regulation the procedure to be followed for issuing or revoking certificates (s. 148). It follows that even though the Office has the discretionary power to evaluate the use of French within an enterprise, it cannot, upon accepting a program or issuing a francization certificate (s. 140), exercise this power in a manner that fails to comply with the purpose and spirit of the Act (The Lachine General Hospital Corporation et al., cited above, pp. 2821 and following; Alliance for Language Communities in Quebec, cited above, p. 2633) or is contrary to the Constitution and the charters of rights.

[56] Similarly, the third, fourth and fifth subsections of s. 141, which are only corollaries of s. 4, do not mean that the Office should give a negative evaluation to an enterprise that does not prohibit its employees from having discussions in the language of their choice; that sends them internal communications written in French, in accordance with s. 141, together with communications in one or more other languages; or provides them with manuals or catalogues that are bilingual, trilingual, etc., including French. An analysis of sections 4, 41 and 89 does not lead to the conclusion that the use of another language in addition to French is prohibited (Mc Kenna inc. c. Office de langue francaise du Québec, C.S.M. No. 500-05-002007-845, judgment rendered on April 4, 1984, by Justice Vaillancourt). If that were the case, there would be an unjustified violation of the freedom of expression of the employees engaged in such discussions or the employer addressing them. Indeed, although there is justification, in the Quebec context, to require enterprises and their managers to address employees in French rather than another language that may have been chosen by the enterprise or the manager, it is quite different to prohibit them from adding a version in another language (Ford, cited above, p. 748).

[57] With respect to the seventh subsection, given ss. 58 and 89 of the Act, it cannot be interpreted as prohibiting public signage or commercial advertising in another language. If that were the case, it is now well established that such an interpretation would be contrary to the charters of rights and invalid because it unduly restricts freedom of expression (Ford v. Quebec (A.G.), cited above). Therefore, the Office cannot penalize an enterprise because its external advertising, while ensuring that French is predominant, in accordance with s. 58 of the Act, also includes a version in another language; furthermore, the Office cannot require this other language to be removed in order to issue the certificate.

[58] The eighth subsection allows the Office to ensure the existence of policies for recruitment, promotion and transfer that require applicants to have a knowledge of French. However, the Office cannot give an enterprise a negative evaluation because it hires or promotes candidates who are bilingual or trilingual, or require recruitment, promotions and transfers to be restricted to unilingual Francophones only. If that were the case, it would have resulted in the violation of ss. 10 and 16 of the Quebec Charter of Human Rights and Freedoms (Lachine (Ville de) c. Commission des droits de la personne du Québec 1988 CanLII 1272 (QC CA), [1989] R.J.Q 17 C.A.).

[59] Therefore, should there be a different interpretation of the last paragraph on information technologies, most notably by authorizing the Office to insist that the enterprise ban the use of software in English? Certainly not, considering s. 89 of the Act, which allows the use of both French and another language, and s. 41.1 of the Interpretation Act (R.S.Q., c. I-16), which provides that the provisions of an act, including those in s. 141, are construed by one another.

[60] This means that all employees have the right to be provided with software in French for their work, if available, but that there is nothing stopping an employer from also providing them with versions in English or another language. To ensure generalized use of French in enterprises, the Office may require that a francization program be put in place before issuing a certificate, but the Office cannot use this requirement to prevent an employer that so wishes, from providing its employees with a version of the French software in English or another language.

[61] The Court agrees with the representatives of the Attorney General, in that s. 141 imposes a directive on enterprises and the Office, which is optimum use of French in enterprises, but does not prohibit the use of another language. It follows that the Office may require an employer to set up measures that encourage employees to work in French, but may not prohibit the employer from making tools available in English. The use of software in French could be promoted by designing the systems in such a way that they would offer this software first or by default, by giving the employees adequate training on terminology and providing them with manuals and other tools that encourage them to use French software. (The government, for its part, can ensure that students have a command of French terminology before they reach the work place.)

[62] Not only does the Act not permit the Office to insist on the removal of software in English, but it is also important to recognize that an employer can legitimately conclude that the Office’s opinion to the effect that [translation] “the employer benefits from better productivity when the staff are provided with work tools in French” is also valid for tools in English provided to employees who are Anglophone or trained in English.

[63] Since proper interpretation of the provision does not allow the Office to insist that English versions of software should no longer be made available to employees, it is not necessary to decide whether s. 141(9) of the Act must be declared inoperative because it is contrary to the charters of rights, nor is it necessary to evaluate the arguments related to the reasonableness or unreasonableness of a violation of a right guaranteed by the charters.

142. A francization program must take account of

(1) the situation of persons who are near retirement or of persons who have long records of service with the enterprise;

(2) the relations of the enterprise with the exterior;

(3) the particular case of head offices and research centres established in Québec by enterprises whose activities extend outside Québec;

(4) in enterprises producing cultural goods having a language content, the particular situation of production units whose work is directly related to such language content;

(5) the line of business of the enterprise.

1977, c. 5, s. 142; 1993, c. 40, s. 49; 1999, c. 40, s. 45; 2002, c. 28, s. 22.

143. After having approved the francization program of an enterprise, the Office shall issue an attestation of implementation in respect of the program.

The enterprise must comply with the elements and stages of its program and keep its personnel informed of the implementation thereof.

In addition, the enterprise must submit reports on the implementation of its program to the Office, every 24 months in the case of an enterprise employing fewer than 100 persons and every 12 months in the case of an enterprise employing 100 or more persons.

1977, c. 5, s. 143; 1983, c. 56, s. 33; 1993, c. 40, s. 49; 1999, c. 40, s. 45.

144. The implementation of francization programs in head offices and in research centres may be the subject of special agreements with the Office to allow the use of a language other than French as the language of operation. Such agreements are valid for a renewable period of not more than five years.

The Government shall determine, by regulation, in what cases, on what conditions and according to what terms a head office or research centre may be a party to such an agreement. The regulation may prescribe matters which must be dealt with under certain provisions of such an agreement.

While such an agreement remains in force, the head office or research centre is deemed to be complying with the provisions of this chapter.

1977, c. 5, s. 144; 1983, c. 56, s. 34; 1993, c. 40, s. 49; 2002, c. 28, s. 23.

144.1. (Replaced).

1983, c. 56, s. 34; 1993, c. 40, s. 49.

145. Where an enterprise has completed the implementation of its francization program and the Office considers that the use of French is generalized at all levels of the enterprise according to the terms of section 141, the Office shall issue a francization certificate.

1977, c. 5, s. 145; 1993, c. 40, s. 49; 1999, c. 40, s. 45.

146. Every enterprise holding a francization certificate issued by the Office is required to ensure that the use of French remains generalized at all levels according to the terms of section 141.

The enterprise shall submit to the Office, every three years, a report on the progression of the use of French in the enterprise.

1977, c. 5, s. 146; 1983, c. 56, s. 35; 1993, c. 40, s. 49; 1999, c. 40, s. 45.

147. The Office may refuse, suspend or cancel the attestation of implementation of a francization program or the francization certificate of an enterprise which is not or is no longer complying with its obligations under this Act or the regulations thereunder.

Before making a decision, the Office may hear the views of any interested person on the situation of the enterprise concerned.

1977, c. 5, s. 147; 1983, c. 56, s. 36; 1993, c. 40, s. 49; 1999, c. 40, s. 45.

Annotations

Chiasson v. Québec (Procureure générale), 2000 CanLII 18921 (QC CS) [judgment available in French only]

[OUR TRANSLATION]

[53] Obtaining a certificate from the Office is therefore an important administrative formality for any business subject to the requirement, and the legislature has not granted the Office full discretion in issuing or revoking certificates (s. 147). On the contrary, the Act lists nine elements that the Office must take into consideration in order to make a decision (s. 141) and leaves it up to the government to define by regulation the procedure to be followed for issuing or revoking certificates (s. 148). It follows that even though the Office has the discretionary power to evaluate the use of French within an enterprise, it cannot, upon accepting a program or issuing a francization certificate (s. 140), exercise this power in a manner that fails to comply with the purpose and spirit of the Act (The Lachine General Hospital Corporation et al., cited above, pp. 2821 and following; Alliance for Language Communities in Quebec, cited above, p. 2633) or is contrary to the Constitution and the charters of rights.

148. The Government shall determine, by regulation, the procedure relating to the issue, suspension or cancellation of an attestation of implementation of a francization program or a francization certificate. Such procedure may vary according to the classes of enterprises established by the Government.

The Government shall also determine, by regulation, the procedure by which an interested person makes his views known under the second paragraph of section 147.

1977, c. 5, s. 148; 1983, c. 56, s. 37; 1993, c. 40, s. 49; 1999, c. 40, s. 45.

149. (Replaced).

1977, c. 5, s. 149; 1993, c. 40, s. 49.

150. (Replaced).

1977, c. 5, s. 150; 1983, c. 56, s. 38; 1993, c. 40, s. 49.

151. The Office may, with the approval of the Minister responsible for the administration of this Act, and on condition of a notice in the Gazette officielle du Québec, require an enterprise employing less than 50 persons to analyze its language situation and to prepare and implement a francization program.

Where such an enterprise requires a period of time to comply with certain provisions of this Act or of a regulation thereunder, it may request the assistance of the Office and enter into a special agreement with the latter. Within the scope of such an agreement, the Office may, for the period it determines, exempt the enterprise from the application of any provision of this Act or of a regulation thereunder.

The Office shall, every year, make a report to the Minister of the measures taken by the enterprises and the exemptions granted.

1977, c. 5, s. 151; 1993, c. 40, s. 50; 1999, c. 40, s. 45; 2002, c. 28, s. 24.

151.1. Every enterprise that fails to comply with the obligations imposed by sections 136 to 146 and 151 with regard to the francization process applicable to it commits an offence and is liable to the penalties provided for in section 205.

1997, c. 24, s. 16; 1999, c. 40, s. 45.

152. (Repealed).

1977, c. 5, s. 152; 1993, c. 40, s. 51.

153. The Office may, for such period as it may determine, exempt an enterprise from the application of any provision of this Act or of the regulations

(a) where it issues a certificate of registration or a francization certificate, or

(b) where a francization program approved by the Office is in the process of being implemented in the enterprise.

The Office shall notify the Minister of any exemption thus granted.

1977, c. 5, s. 153; 1983, c. 56, s. 39; 1993, c. 40, s. 52; 1999, c. 40, s. 45.

154. The general information, the analysis of the linguistic situation and the reports provided for in this chapter must be submitted on the forms and questionnaires furnished by the Office.

1977, c. 5, s. 154; 1983, c. 56, s. 40; 1993, c. 40, s. 53.

154.1. (Replaced).

1983, c. 56, s. 40; 1993, c. 40, s. 53.

155. (Replaced).

1977, c. 5, s. 155, s. 14; 1978, c. 18, s. 24; 1978, c. 15, s. 140; 1983, c. 56, s. 41; 1983, c. 55, s. 161; 1993, c. 40, s. 53.

155.1. (Replaced).

1983, c. 56, s. 41; 1993, c. 40, s. 53.

155.2. (Replaced).

1983, c. 56, s. 41; 1993, c. 40, s. 53.

155.3. (Replaced).

1983, c. 56, s. 41; 1993, c. 40, s. 53.

155.4. (Replaced).

1983, c. 56, s. 41; 1993, c. 40, s. 53.

156. (Replaced).

1977, c. 5, s. 156; 1993, c. 40, s. 53.

Title III – The Office québécois de la langue française

Chapter I – Establishment

157. A body is hereby established under the name of “Office québécois de la langue française”.

1977, c. 5, s. 157; 1983, c. 56, s. 43; 1993, c. 40, s. 54; 1997, c. 24, s. 17; 2002, c. 28, s. 26.

158. The head office of the Office shall be located in Québec or Montréal, at the place determined by the Government.

The address of the head office, as well as notice of any change thereof, shall be published in the Gazette officielle du Québec.

The Office shall have an office in Québec and another in Montréal and may have offices elsewhere in Québec.

1977, c. 5, s. 158; 1983, c. 56, s. 43; 1993, c. 40, s. 54; 1997, c. 24, s. 17; 2002, c. 28, s. 26.

Chapter II – Mission and Powers

159. The Office is responsible for defining and conducting Québec policy on linguistic officialization, terminology and the francization of the civil administration and enterprises.

The Office is also responsible for ensuring compliance with this Act.

1977, c. 5, s. 159; 1983, c. 56, s. 43; 1993, c. 40, s. 54; 1997, c. 24, s. 17; 2002, c. 28, s. 26.

160. The Office shall monitor the linguistic situation in Québec and shall report thereon to the Minister at least every five years, especially as regards the use and status of the French language and the behaviour and attitudes of the various linguistic groups.

1977, c. 5, s. 160, s. 14; 1983, c. 56, s. 43; 1993, c. 40, s. 54; 1997, c. 24, s. 17; 2002, c. 28, s. 26.

161. The Office shall see to it that French is the normal and everyday language of work, communication, commerce and business in the civil administration and in enterprises. The Office may, among other things, take any appropriate measure to promote French.

The Office shall help define and develop the francization programs provided for in this Act and monitor their application.

1977, c. 5, s. 161; 1978, c. 15, s. 140; 1983, c. 56, s. 43; 1983, c. 55, s. 161; 1993, c. 40, s. 54; 1997, c. 24, s. 17; 2002, c. 28, s. 26.

162. The Office may assist and inform the civil administration, semipublic agencies, enterprises, associations and natural persons as regards the correction and enrichment of spoken and written French in Québec.

The Office may also receive observations and suggestions from such parties regarding the quality of the French language or problems encountered in the application of this Act, and report thereon to the Minister.

1977, c. 5, s. 162; 1978, c. 15, s. 133, s. 140; 1983, c. 56, s. 43; 1983, c. 55, s. 161; 1993, c. 40, s. 54; 1997, c. 24, s. 17; 2002, c. 28, s. 26.

163. The Office shall establish the research programs needed for the application of this Act. It may carry out or commission the studies provided for in the research programs.

1977, c. 5, s. 163, s. 14; 1993, c. 40, s. 54; 1997, c. 24, s. 17; 2002, c. 28, s. 26.

164. The Office may make agreements or take part in joint projects with any person or agency.

The Office may, in accordance with the applicable legislative provisions, make an agreement with a government other than that of Québec, a department or agency of such a government, an international organization or an agency of such an organization.

1977, c. 5, s. 164; 1983, c. 56, s. 43; 1993, c. 40, s. 54; 1997, c. 24, s. 17; 2002, c. 28, s. 26.

Chapter II.1 – Organization

Division I – General Provisions

165. The Office shall be composed of eight members.

The members of the Office shall be appointed by the Government as follows:

(1) a president and director general, for a term not exceeding five years; and

(2) six persons, for a term not exceeding five years.

The associate deputy minister responsible for the implementation of language policy shall be a permanent non-voting member of the Office; the associate deputy minister may appoint a substitute.

At the expiry of their terms, non-permanent members shall remain in office until they are replaced or reappointed.

1977, c. 5, s. 165, s. 14; 1993, c. 40, s. 54; 1997, c. 24, s. 17; 2002, c. 28, s. 26.

165.1. The quorum at meetings of the Office is the majority of the members.

Meetings shall be presided over by the president and director general, who shall have a casting vote in the event of a tie.

2002, c. 28, s. 26.

165.2. The Office may hold meetings anywhere in Québec.

The members of the Office may participate in a meeting by means of telephone or other communications equipment enabling all participants to hear one another.

2002, c. 28, s. 26.

165.3. The president and director general is responsible for the management and administration of the Office within the scope of its internal by-laws and policies.

The powers and functions conferred on the Office by the first paragraph of section 38 and sections 40, 131 to 133, 139, 143 and 151 are exercised by the president and director general, who shall report periodically to the Office.

The Office may delegate any other power or function to the president and director general.

2002, c. 28, s. 26.

165.4. If the president and director general is absent or unable to act, another member of the Office designated by the Minister shall act as a substitute.

2002, c. 28, s. 26.

165.5. The office of president and director general shall be exercised on a full-time basis. The Government shall determine the remuneration, employment benefits and other conditions of employment of the president and director general.

The other members of the Office shall receive no remuneration, except in such cases, on such conditions and to such extent as may be determined by the Government. They are, however, entitled to the reimbursement of reasonable expenses incurred in the exercise of their functions, on the conditions and to the extent determined by the Government.

2002, c. 28, s. 26.

165.6. The staff of the Office shall be appointed pursuant to the Public Service Act (chapter F-3.1.1).

2002, c. 28, s. 26.

165.7. Neither the Office nor its members, its staff or the members of its committees may be prosecuted by reason of official acts performed in good faith in the exercise of their powers and functions.

2002, c. 28, s. 26.

165.8. The Office may make internal by-laws.

The Office may in particular establish permanent or temporary committees, define their powers and duties and determine their mode of constitution and operation.

The committees may, with the authorization of the Minister, be composed in whole or in part of persons who are not members of the Office.

Committee members shall receive no remuneration, except in such cases, on such conditions and to such extent as may be determined by the Government. They are, however, entitled to the reimbursement of reasonable expenses incurred in the exercise of their functions, on the conditions and to the extent determined by the Government.

The Office may also generally authorize a member or staff member of the Office to act as a mediator to facilitate an agreement between the parties in accordance with section 47.

2002, c. 28, s. 26.

165.9. The minutes of the meetings of the Office, approved by the Office, and documents and copies emanating from the Office or forming part of its records are authentic if signed or certified by the president and director general or by a staff member so authorized by the latter.

2002, c. 28, s. 26.

165.10. Not later than 31 August each year, the Office shall submit a report to the Minister on its activities for the preceding fiscal year.

The Minister shall lay the report before the National Assembly within 30 days after receiving it or, if the Assembly is not sitting, within 30 days of resumption.

2002, c. 28, s. 26.

Division II – Comité d’officialisation linguistique and Comité de suivi de la situation linguistique

165.11. Committees are hereby established within the Office under the names of “Comité d’officialisation linguistique” and “Comité de suivi de la situation linguistique”.

On request or on its own initiative, each of the committees shall, in its designated field, advise and submit proposals to the Office.

2002, c. 28, s. 26.

165.12. Each of the committees shall be composed of five members appointed by the Office as follows:

(1) a committee chair, chosen from among the members of the Office, for the unexpired portion of his or her term as a member of the Office;

(2) a secretary, chosen from among the staff of the Office, for a term not exceeding four years ; and

(3) three persons who are neither members nor staff members of the Office, for a term not exceeding four years.

The Comité d’officialisation linguistique shall include at least two French linguistics specialists and the Comité de suivi de la situation linguistique shall include at least two demography or sociolinguistics specialists.

At the expiry of their terms, committee members shall remain in office until they are replaced or reappointed.

2002, c. 28, s. 26.

165.13. Committee members shall receive no remuneration, except in such cases, on such conditions and to such extent as may be determined by the Government. They are, however, entitled to the reimbursement of reasonable expenses incurred in the exercise of their functions, on the conditions and to the extent determined by the Government.

2002, c. 28, s. 26.

165.14. The committees shall operate under rules determined by the internal by-laws of the Office.

2002, c. 28, s. 26.

Title III.1 – Inspections and Inquiries

166. The Office may, for the purposes of this Charter, make inspections and inquiries.

1977, c. 5, s. 166; 1993, c. 40, s. 54; 1997, c. 24, s. 17; 2002, c. 28, s. 33.

167. The Office shall act on its own initiative or following the filing of a complaint.

Where a complaint has been filed, the president and director general may exercise, alone, the powers of the Office.

1977, c. 5, s. 167; 1983, c. 56, s. 43; 1993, c. 40, s. 54; 1997, c. 24, s. 17; 2002, c. 28, s. 28, s. 33.

168. Every complaint must be filed in writing; it must set out the grounds on which it is based and state the identity of the complainant. The Office shall provide assistance to complainants in drawing up their complaints.

1977, c. 5, s. 168; 1983, c. 56, s. 43; 1993, c. 40, s. 54; 1997, c. 24, s. 17; 2002, c. 28, s. 33.

169. The Office shall refuse to act if the complaint is manifestly unfounded or in bad faith.

The Office may refuse to act if an appropriate recourse is available to the complainant or if it considers that the circumstances do not justify its intervention.

Where it refuses to act, the Office shall inform the complainant of its decision, giving the reasons on which it is based. The Office shall inform the complainant of the recourses available, if any.

1977, c. 5, s. 169; 1993, c. 40, s. 54; 1997, c. 24, s. 17; 2002, c. 28, s. 33.

170. (Repealed).

1977, c. 5, s. 170; 1993, c. 40, s. 54; 1997, c. 24, s. 17; 1999, c. 40, s. 45; 2002, c. 28, s. 29.

171. The Office may designate, generally or specially, any person to make an inquiry or an inspection.

1977, c. 5, s. 171; 1993, c. 40, s. 54; 1997, c. 24, s. 17; 2002, c. 28, s. 33.

172. The Office has the powers and immunity of commissioners appointed under the Act respecting public inquiry commissions (chapter C-37), except the power to order imprisonment.

Where necessary, the Office may confer such powers and immunity on any person it designates.

1977, c. 5, s. 172; 1993, c. 40, s. 54; 1997, c. 24, s. 17; 2002, c. 28, s. 33.

173. No proceedings may be instituted against a person making an inspection or an inquiry by reason of any act or omission done in good faith in the exercise of his functions.

1977, c. 5, s. 173; 1993, c. 40, s. 54; 1997, c. 24, s. 17.

174. A person making an inspection for the purposes of this Act may, during business hours, provided it is at a reasonable time, enter any place open to the public. In the course of the inspection, the person may, in particular, examine any product or document, make copies, and require any relevant information.

The person must, at the request of any interested person, identify himself and produce the certificate attesting his capacity.

1977, c. 5, s. 174; 1993, c. 40, s. 54; 1997, c. 24, s. 17.

175. The Office may, for the purposes of this chapter, require a person to forward any relevant document or information within the time it fixes.

1977, c. 5, s. 175; 1993, c. 40, s. 54; 1997, c. 24, s. 17; 2002, c. 28, s. 33.

176. No person may hinder, in any way, the actions of the Office or of a person designated by the Office when acting in the exercise of their functions, mislead the Office or the person by withholding information or making false statements, or refuse to provide any information or document the Office or the person is entitled to obtain.

1977, c. 5, s. 176; 1993, c. 40, s. 54; 1997, c. 24, s. 17; 2002, c. 28, s. 33.

177. Where the Office is of the opinion that this Charter or a regulation thereunder has been contravened, it shall give the alleged offender formal notice to comply therewith within the time indicated. If the alleged offender fails to comply, the Office shall refer the matter to the Director of Criminal and Penal Prosecutions so that he may, where required, institute appropriate penal proceedings.

In the case of a contravention of section 78.1, 78.2, 78.3 or 176, the Office shall refer the matter directly to the Director of Criminal and Penal Prosecutions, without giving prior formal notice.

1977, c. 5, s. 177; 1993, c. 40, s. 54; 1997, c. 24, s. 17; 2002, c. 28, s. 33; 2005, c. 34, s. 85; 2010, c. 23, s. 8.

Chapter IV

Repealed, 2002, c. 28, s. 30.

1997, c. 24, s. 17; 2002, c. 28, s. 30.

178. (Repealed).

1977, c. 5, s. 178; 1993, c. 40, s. 54; 1997, c. 24, s. 17; 2002, c. 28, s. 30.

179. (Repealed).

1977, c. 5, s. 179; 1983, c. 56, s. 42; 1993, c. 40, s. 54; 1997, c. 24, s. 17; 2002, c. 28, s. 30.

180. (Repealed).

1977, c. 5, s. 180; 1983, c. 56, s. 43; 1993, c. 40, s. 54.

181. (Repealed).

1977, c. 5, s. 181; 1993, c. 40, s. 54.

182. (Repealed).

1977, c. 5, s. 182; 1986, c. 46, s. 9; 1993, c. 40, s. 54.

183. (Repealed).

1977, c. 5, s. 183; 1983, c. 56, s. 43; 1993, c. 40, s. 54.

184. (Repealed).

1977, c. 5, s. 184; 1983, c. 56, s. 43; 1993, c. 40, s. 54.

Title IV – The Conseil supérieur de la langue française

185. A council is hereby established under the name “Conseil supérieur de la langue française”.

1977, c. 5, s. 185; 2002, c. 28, s. 31.

186. The head office of the Conseil shall be located in Québec, at the place determined by the Government.

The address of the head office, as well as notice of any change thereof, shall be published in the Gazette officielle du Québec.

1977, c. 5, s. 186; 2002, c. 28, s. 31.

187. The mission of the Conseil is to advise the Minister responsible for the administration of this Act on any matter relating to the French language in Québec.

In that capacity, the Conseil shall

(1) advise the Minister on any matter the Minister submits to it;

(2) bring to the Minister’s attention any matter which, in its opinion, requires the attention of the Government.

1977, c. 5, s. 187, s. 14; 2002, c. 28, s. 31.

188. In carrying out its mission, the Conseil may

(1) receive and hear observations from individuals or groups;

(2) conduct or commission such studies and research as it considers necessary.

The Conseil may also inform the public on any matter relating to the French language in Québec.

1977, c. 5, s. 188, s. 14; 1993, c. 40, s. 55; 2002, c. 28, s. 31.

189. The Conseil shall be composed of eight members.

The members of the Conseil shall be appointed by the Government as follows:

(1) a chair, for a term not exceeding five years; and

(2) seven persons, chosen after consultation with the bodies which the Government considers representative of consumers, educational circles, cultural communities, unions and management, for a term not exceeding five years.

At the expiry of their terms, members shall remain in office until they are replaced or reappointed.

1977, c. 5, s. 189, s. 14; 1993, c. 40, s. 56; 1999, c. 40, s. 45; 2002, c. 28, s. 31.

190. The quorum at meetings of the Conseil is the majority of the members.

Meetings shall be presided over by the chair, who shall have a casting vote in the event of a tie.

1977, c. 5, s. 190; 1997, c. 24, s. 18; 2002, c. 28, s. 31.

191. The Conseil may hold meetings anywhere in Québec.

The members of the Conseil may participate in a meeting by means of telephone or other communications equipment enabling all participants to hear one another.

1977, c. 5, s. 191; 2002, c. 28, s. 31.

192. The chair is responsible for the management and administration of the Conseil.

1977, c. 5, s. 192, s. 14; 2002, c. 28, s. 31.

193. If the chair is absent or unable to act, another member of the Conseil designated by the Minister shall act as a substitute.

1977, c. 5, s. 193; 2002, c. 28, s. 31.

194. The office of chair shall be exercised on a full-time basis. The Government shall determine the remuneration, employment benefits and other conditions of employment of the chair.

The other members of the Conseil shall receive no remuneration, except in such cases, on such conditions and to such extent as may be determined by the Government. They are, however, entitled to the reimbursement of reasonable expenses incurred in the exercise of their functions, on the conditions and to the extent determined by the Government.

1977, c. 5, s. 194; 1997, c. 24, s. 19; 2002, c. 28, s. 31.

195. The staff of the Conseil shall be appointed pursuant to the Public Service Act (chapter F-3.1.1).

1977, c. 5, s. 195, s. 14; 2002, c. 28, s. 31.

196. The Conseil may provide for its internal management.

The Conseil may establish committees to assist it in the exercise of its powers and duties.

The committees may, with the authorization of the Minister, be composed, in whole or in part, by persons who are not members of the Conseil.

1977, c. 5, s. 196, s. 14; 2002, c. 28, s. 31.

197. The minutes of the meetings of the Conseil, approved by the Conseil, and documents and copies emanating from the Conseil or forming part of its records are authentic if signed or certified by the chair or by a staff member so authorized by the latter.

1977, c. 5, s. 197; 1978, c. 15, s. 133, s. 140; 1983, c. 55, s. 161; 2000, c. 8, s. 242; 2002, c. 28, s. 31.

197.1. (Replaced).

1997, c. 24, s. 20; 2002, c. 28, s. 31.

198. Not later than 31 August each year, the Conseil shall submit a report to the Minister on its activities for the preceding fiscal year.

The Minister shall lay the report before the National Assembly within 30 days after receiving it or, if the Assembly is not sitting, within 30 days of resumption.

1977, c. 5, s. 198, s. 14; 1993, c. 40, s. 57; 2002, c. 28, s. 31.

199. (Replaced).

1977, c. 5, s. 199; 1993, c. 40, s. 58; 2002, c. 28, s. 31.

200. (Replaced).

1977, c. 5, s. 200, s. 14; 1996, c. 2, s. 115; 2000, c. 56, s. 220; 2002, c. 28, s. 31.

201. (Replaced).

1977, c. 5, s. 201; 2002, c. 28, s. 31.

202. (Replaced).

1977, c. 5, s. 202; 1999, c. 40, s. 45; 2002, c. 28, s. 31.

203. (Replaced).

1977, c. 5, s. 203; 2002, c. 28, s. 31.

204. (Replaced).

1977, c. 5, s. 204; 2002, c. 28, s. 31.

Title V – Penal Provisions and Other Sanctions

205. Every person who contravenes a provision of this Act or the regulations adopted by the Government thereunder commits an offence and is liable

(a) to a fine of $600 to $6,000 in the case of a natural person;

(b) to a fine of $1,500 to $20,000 in the case of a legal person.

The fines are doubled for a subsequent offence.

In determining the amount of a fine, the judge takes into account, among other things, the revenues and other benefits the offender derived from the offence and any damages and socio-economic consequences that resulted from the offence.

Moreover, if a person is convicted of an offence under this Act, a judge may, on an application made by the prosecutor and submitted with the statement of offence, impose on the offender, in addition to any other penalty, a further fine equal to the financial gain the offender realized or derived from the offence, even if the maximum fine has also been imposed.

1977, c. 5, s. 205, s. 14; 1986, c. 58, s. 15; 1990, c. 4, s. 128; 1991, c. 33, s. 18; 1993, c. 40, s. 59; 1997, c. 24, s. 21; 2010, c. 23, s. 9.

Annotations

Québec (Procureur général) v. Hyperinfo Canada Inc., 2001 CanLII 16493 (QC CQ) [judgment available in French only]

[OUR TRANSLATION]

Language of Commerce

The defendant’s representative claims that the exception in section 11 of the Regulation respecting the language of commerce and business (Regulation) applies to the Internet medium. To facilitate proper understanding, the text of section 11 of this Regulation is reproduced here.

“11. Catalogues, brochures, folders, commercial directories and any similar publications concerning a cultural or educational product within the meaning of section 2, concerning a cultural or educational activity such as a show, recital, speech, lecture, course, seminar or radio or television program or promoting a news medium may be exclusively in a language other than French provided that the content of the cultural or educational product is in that other language, the activity is held in that other language or the news medium publishes or broadcasts in that other language, as the case may be.”

The scope of application of section 11 of the Regulation is limited to cultural or educational activities. Therefore, similar catalogues, brochures, folders and other commercial publications made available via the Internet may be produced in a language other than French if the publications are related to a cultural or educational activity.

The legal regime established by sections 52 and 205 of the Charter and sections 11 and 13 of the Regulation give rise to a due diligence defence. The possibility of establishing that a commercial publication can be produced by a company established exclusively outside Quebec or based on an exemption allows me to determine that the offence provided in sections 52 and 205 of the Charter is one of strict liability. A defendant who wants to benefit from an exception must prove, on a balance of probabilities, that all the conditions for applying the exemption have been fulfilled. In this case, the defence limited itself to claiming that the exemption applies. The onus was on the defendant to prove that the content of the directories and files she would be selling were related to the activities described in section 11 of the Regulation. In the absence of such evidence, the court cannot infer from the titles in the index of services that the activity is cultural or educational. To illustrate my point, I would simply mention that the defendant’s representative was unable to explain how a file about establishing a bed and breakfast or another related to advertising via stickers could qualify as an activity under section 11 of the Regulation.

205.1. Every person who contravenes any of the provisions of sections 51 to 54 by distributing, selling by retail sale, renting, offering for sale or rental or otherwise marketing, for consideration or free of charge, or by possessing for such purposes,

(1) a product, if the inscriptions on the product, on its container or wrapping, or on a document or object supplied with it, including the directions for use and the warranty certificates, are not in conformity with the provisions of this Charter,

(2) computer software, including game software and operating systems, or a game or toy that is not in conformity with the provisions of this Charter, or

(3) a publication that is not in conformity with the provisions of this Charter,

commits an offence and is liable to the fines provided for in section 205.

The operator of an establishment where menus or wine lists that are not in conformity with the provisions of section 51 are presented to the public also commits an offence and is liable to the fines provided for in section 205.

The burden of proof concerning the exceptions provided for in sections 52.1 and 54, or pursuant to section 54.1, lies with the person who invokes the exceptions.

1997, c. 24, s. 22.

206. (Repealed).

1977, c. 5, s. 206; 1986, c. 58, s. 16; 1990, c. 4, s. 129; 1991, c. 33, s. 19; 1993, c. 40, s. 60.

207. The Attorney General, the Director of Criminal and Penal Prosecutions or a person either of them has authorized shall institute penal prosecutions under this Act. The Attorney General shall bring all other proceedings necessary for the enforcement of this Act.

1977, c. 5, s. 207; 1990, c. 4, s. 130; 2005, c. 34, s. 41.

208. Any court of civil jurisdiction, on application 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 application 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.

1977, c. 5, s. 208; I.N. 2016-01-01 (NCCP).

208.1. Every person who is convicted of contravening section 78.1 or 78.2 is disqualified for office as a school board commissioner.

The disqualification period is five years from the date on which the judgment of guilty becomes res judicata.

1986, c. 46, s. 11; 1988, c. 84, s. 549; 1990, c. 4, s. 131; 2010, c. 23, s. 10.

208.2. Where a judgment of guilty become res judicata has been rendered against a person in the employ of a school body who has been convicted of contravening section 78.1 or 78.2, the Director of Criminal and Penal Prosecutions shall notify the school body in writing.

On receiving the notice, the school body shall suspend that person without pay for six months.

1986, c. 46, s. 11; 1990, c. 4, s. 132; 2005, c. 34, s. 85; 2010, c. 23, s. 10.

208.3. Whoever does or omits to do something in order to assist a person to commit an offence under this Act or the regulations, or advises, encourages or incites a person to commit such an offence, is also guilty of the offence.

2010, c. 23, s. 11.

208.4. In any penal proceedings relating to an offence under this Act or the regulations, proof that the offence was committed by an agent, mandatary or employee of any party is sufficient to establish that it was committed by that party, unless the party establishes that it exercised due diligence and took all the necessary precautions to ensure compliance with this Act and the regulations.

2010, c. 23, s. 11.

208.5. Penal proceedings for an offence under this Act or the regulations are prescribed two years from the date on which the offence was committed.

Despite the first paragraph, penal proceedings for an offence under section 78.1 or 78.2 are prescribed one year from the date on which the prosecutor became aware that the offence had been committed. However, no proceedings may be instituted if more than five years have elapsed from the date the offence was committed.

2010, c. 23, s. 11.

Title VI – Transitional and Miscellaneous Provisions

209. Section 11 shall come into force on 3 January 1979 and shall not affect cases pending on that date.

Section 13 shall come into force on 3 January 1980 and shall not affect cases pending on that date.

Section 34, 58 and 208 shall come into force on 3 July 1978, subject to section 211.

1977, c. 5, s. 209.

210. Owners of bill-boards or illuminated signs erected before 31 July 1974 must comply with section 58 from its coming into force.

1977, c. 5, s. 210.

211. Every person who has complied with the requirements of section 35 of the Official Language Act (1974, chapter 6) in respect of bilingual public signs shall have until 1 September 1981 to make the required changes, in particular to change his bill-boards and illuminated signs, in order to comply with this Act.

1977, c. 5, s. 211.

212. The Government shall entrust a minister with the application of this Act. Such minister shall exercise in regard to the staff of the Office québécois de la langue française and the staff of the Conseil supérieur de la langue française the powers of the incumbent minister of a department.

1977, c. 5, s. 230, s. 14; 1978, c. 15, s. 140; 1983, c. 56, s. 43; 1993, c. 40, s. 61; 1997, c. 24, s. 23; 2002, c. 28, s. 32.

Note from the Quebec Official Publisher

The Minister responsible for the Protection and Promotion of the French Language is entrusted with the application of this Act. Order in Council 106-2016 dated 22 February 2016, (2016) 148 G.O. 2 (French), 1581.

213. This Act applies to the Government.

1977, c. 5, s. 231, s. 14.

214. (This section ceased to have effect on 17 April 1987).

1982, c. 21, s. 1; U. K., 1982, c. 11, Sch. B, Part I, s. 33.

Schedule

A. The civil administration

1. The Government and the Government departments.

2. The Government agencies:

Agencies to which the Government or a minister appoints the majority of the members, to which, by law, the officers or employees are appointed in accordance with the Public Service Act (chapter F-3.1.1), or at least half of whose capital stock is derived from the Consolidated Revenue Fund except, however, health services and social services, general and vocational colleges and the Université du Québec.

2.1 (Paragraph repealed).

3. The municipal and school bodies:

(a) the metropolitan communities and transit authorities:

The Communauté métropolitaine de Québec and the Communauté métropolitaine de Montréal, the Société de transport de Québec, the Société de transport de Montréal, the Société de transport de l’Outaouais, the Société de transport de Laval and the Société de transport de Longueuil;

(b) the municipalities, municipal boroughs being regarded as municipalities;

(b.1) the bodies under the authority of a municipality and taking part in the administration of its territory;

The school boards and the Comité de gestion de la taxe scolaire de l’île de Montréal.

4. The health services and the social services:

Institutions within the meaning of the Act respecting health services and social services (chapter S-4.2) or within the meaning of the Act respecting health services and social services for Cree Native persons (chapter S-5).

B. Semipublic agencies

1. Public utility enterprises:

If they are not already Government agencies, the telephone, telegraph and cable-delivery enterprises, the air, ship, bus and rail transport enterprises, the enterprises which produce, transport, distribute or sell gas, water or electricity, and enterprises holding authorizations from the Commission des transports.

2. Professional orders:

The professional orders listed in Schedule I to the Professional Code (chapter C-26), or established in accordance with that Code.

1977, c. 5, Schedule; 1978, c. 15, s. 140; 1983, c. 55, s. 161; 1984, c. 42, s. 137; 1985, c. 31, s. 44; 1985, c. 32, s. 159; 1988, c. 84, s. 550; 1990, c. 85, s. 115; 1992, c. 21, s. 119, s. 375; 1993, c. 36, s. 8; 1993, c. 40, s. 62; 1993, c. 67, s. 108; 1994, c. 40, s. 457; 1994, c. 23, s. 23; 1996, c. 2, s. 116; 1997, c. 44, s. 98; 1999, c. 40, s. 45; 2000, c. 8, s. 242; 2000, c. 56, s. 103; 2000, c. 57, s. 11; 2001, c. 23, s. 246; 2002, c. 75, s. 33.

Repeal Schedules

In accordance with section 17 of the Act respecting the consolidation of the statutes (chapter R-3), chapter 5 of the statutes of 1977, in force on 31 December 1977, is repealed, except sections 224 to 229 and 232, effective from the coming into force of chapter C-11 of the Revised Statutes.

In accordance with section 17 of the Act respecting the consolidation of the statutes and regulations (chapter R-3), sections 11, 34, 58 and 208 of chapter 5 of the statutes of 1977, in force on 1 June 1979, are repealed effective from the coming into force of the updating to 1 June 1979 of chapter C-11 of the Revised Statutes.

Regulation of the Office québécois de la langue française respecting the definition of the term "head office" and the recognition of head offices eligible for special agreements with the office, CQLR C. c-11, r. 3

1. In this Regulation, unless the context indicates otherwise,

(a) “agreement” means a special agreement within the meaning of section 144 of the Act;

(b) “Act” means the Charter of the French language;

R.R.Q., 1981, c. C-11, r. 3, s. 1.

2. In accordance with the terms of the Act and this Regulation, “head office” means the positions held by natural persons responsible on a pan-Canadian or international scale for the activities of overall management, of management of staff departments or of service departments for the whole business firm or for its main office if the head office is located outside Canada.

Members of the board of directors as well as executives, their assistants and the support staff assigned to the activities of overall management, of management of staff departments or of service departments for the whole business firm or for its main office are also included as head office personnel.

R.R.Q., 1981, c. C-11, r. 3, s. 2.

3. Within the meaning of the Act and this Regulation, positions held by researchers, as well as by natural persons assigned to the management, conception and implementation of research and development activity in a business firm or a group of business firms are also included as head office personnel.

R.R.Q., 1981, c. C-11, r. 3, s. 3.

4. Every head office established in Québec by a business firm whose activity extends beyond Québec and more than 50 % of whose average gross income during the 3 years prior to the request accrues directly or indirectly from outside Québec is entitled, upon written request of the firm, to be recognized as eligible for an agreement.

R.R.Q., 1981, c. C-11, r. 3, s. 4.

5. Every business firm whose activities extend beyond Québec and less than 50 % of whose average gross income during the 3 years prior to the request accrues from outside Québec may request the Office in writing that its head office established in Québec be recognized as eligible for an agreement if the firm is unable to comply, in implementing its francization program within its head office, with one of the program elements outlined in section 141 of the Act, having taken into account sections 142 and 143 of the Act, for one of the following reasons:

(a) its frequent business contacts outside Québec;

(b) the complexity of the techniques used;

(d) the effects that implementation of its francization program within the head office may have on its competitive position.

R.R.Q., 1981, c. C-11, r. 3, s. 5.

6. For the purposes of sections 4 and 5, where a head office of a business firm whose activity extends beyond Québec, has been established in Québec for less than 3 years, the average gross income is calculated for the period prior to the request.

R.R.Q., 1981, c. C-11, r. 3, s. 6.

7. For the purposes of sections 4 and 5, the business firm must, prior to its request, have completed the analysis of its language situation.

R.R.Q., 1981, c. C-11, r. 3, s. 7.

Regulation respecting the language of commerce and business, CQLR c. C-11, r. 9

Division I – Exceptions to Section 51 of the Charter of the French language

1. For the purposes of this Division and unless the context indicates otherwise, any provision applicable to an inscription on a product also applies, with the necessary modifications, to an inscription on its container or wrapping or on a leaflet, brochure or card supplied with it, including the directions for use and the warranty certificates.

O.C. 1756-93, s. 1.

2. An inscription on a cultural or educational product such as a book, magazine, publication, disk, film or tape, or on a non-promotional greeting card, appointment book or calendar, may be exclusively in a language other than French if the content is in a language other than French or if the cultural or educational product, greeting card, appointment book or calendar has no language content.

O.C. 1756-93, s. 2.

3. An inscription on a product may be exclusively in a language other than French in the following cases:

(1) the product is intended for a market outside Québec;

(2) the inscription appears on a container used in interprovincial or international transportation of merchandise;

(3) the product is from outside Québec, has not yet been marketed in Québec and is being exhibited at a convention, conference, fair or exhibition;

(4) the product is from outside Québec, is intended for incorporation into a finished product or for use in a manufacturing, processing or repair operation and is not offered in Québec for retail sale;

(5) the product is from outside Québec and is in limited use in Québec and no equivalent substitute presented in French is available in Québec; or

(6) the product is from outside Québec and the inscription is engraved, baked or inlaid in the product itself, riveted or welded to it or embossed on it, in a permanent manner. However, inscriptions concerning safety must be written in French and appear on the product or accompany it in a permanent manner.

O.C. 1756-93, s. 3.

4. An inscription embossed on a tire may be exclusively in a language other than French.

O.C. 1756-93, s. 4.

5. An inscription on the original wrapping of perishable food from outside Québec may be exclusively in a language other than French provided that the food is not offered for retail sale in that wrapping.

O.C. 1756-93, s. 5.

6. An inscription on a product from outside Québec to be used for medical, pharmaceutical or scientific purposes or an inscription on the container of such a product may be exclusively in a language other than French provided that the French version of the inscription appears on the wrapping of the product or on a document supplied with the product and either of the following conditions is met:

(1) the product is not offered in Québec for retail sale and no equivalent substitute presented in French is available in Québec; or

(2) the product weighs 100 g or less or its container has a capacity of 10 cm3 or less or 10 ml or less.

O.C. 1756-93, s. 6.

7. The following inscriptions on a product may be exclusively in a language other than French :

(1) the name of a firm established exclusively outside Québec;

(2) a name of origin, the denomination of an exotic product or foreign specialty, a heraldic motto or any other non-commercial motto;

(3) a place name designating a place situated outside Québec or a place name in such other language as officialized by the Commission de toponymie du Québec, a family name, a given name or the name of a personality or character or a distinctive name of a cultural nature; and

(4) a recognized trade mark within the meaning of the Trade Marks Act (R.S.C. 1985, c. T-13), unless a French version has been registered.

O.C. 1756-93, s. 7.

8. A toy or game the operation of which requires the use of a non-French vocabulary may bear an inscription that is exclusively in a language other than French provided that a French version of the toy or game is available on no less favourable terms on the Québec market.

O.C. 1756-93, s. 8.

8.1. A list of the ingredients of a cosmetic may be written according to the conditions prescribed by the Cosmetic Regulations (C.R.C., c. 869).

O.C. 770-2006, s. 1.

9. Nothing in this Division precludes the inscription on a product of any artificial combination of letters, syllables or figures or of pictographs, figures or initials.

O.C. 1756-93, s. 9.

Division II – Exceptions to section 52 of the Charter of the French language

10. Catalogues, brochures, folders, commercial directories and any similar publications may be in 2 separate versions, one exclusively in French, the other exclusively in another language, provided that the material presentation of the French version is available under no less favourable conditions of accessibility and quality than the version in the other language.

However, the version exclusively in another language may be inserted in a news publication published exclusively in that language; it may also be sent to any natural person having made a written request to receive such documents in that other language.

In addition, catalogues, brochures, folders, commercial directories and any similar publications intended for persons belonging to the same ethnical group may be written only in the language of such group.

O.C. 1756-93, s. 10.

O.C. 1756-93, s. 11.

Annotations

Québec (Procureur général) v. Hyperinfo Canada Inc., 2001 CanLII 16493 (QC CQ) [judgment available in French only]

[OUR TRANSLATION]

12. Catalogues, brochures, folders, commercial directories and any similar publications relating to a convention, conference, fair or exhibition, intended solely for a specialized or limited public, may be exclusively in a language other than French.

O.C. 1756-93, s. 12.

13. In catalogues, brochures, folders, commercial directories and any similar publications, the following may appear exclusively in a language other than French:

(1) the name of a firm established exclusively outside Québec;

(2) a name of origin, the denomination of an exotic product or foreign specialty, a heraldic motto or any other non-commercial motto;

(4) a recognized trade mark within the meaning of the Trade Marks Act (R.S.C. 1985, c. T-13), unless a French version has been registered.

O.C. 1756-93, s. 13.

14. Nothing in this Division precludes the use of any artificial combination of letters, syllables or figures or the use of pictographs, figures or initials in catalogues, brochures, folders, commercial directories and any similar publications.

O.C. 1756-93, s. 14.

Division III – Public signs and posters and commercial advertising

15. A firm’s commercial advertising, displayed on billboards, on signs or posters or on any other medium having an area of 16 m2 or more and visible from any public highway within the meaning of section 4 of the Highway Safety Code (chapter C-24.2), must be exclusively in French unless the advertising is displayed on the very premises of an establishment of the firm.

O.C. 1756-93, s. 15.

16. A firm’s commercial advertising on or in any public means of transportation and on or in the accesses thereto, including bus shelters, must be exclusively in French.

O.C. 1756-93, s. 16.

17. Public signs and posters displayed on or in a vehicle regularly used to transport passengers or merchandise, both in Québec and outside Québec, may be both in French and in another language provided that French appears at least as prominently.

O.C. 1756-93, s. 17.

18. Public signs and posters concerning health or public safety may be both in French and in another language provided that French appears at least as prominently.

O.C. 1756-93, s. 18.

19. Public signs and posters of a museum, botanical garden, zoo or cultural or scientific exhibition may, on the premises thereof, be both in French and in another language provided that French appears at least as prominently.

O.C. 1756-93, s. 19.

20. Public signs and posters and commercial advertising concerning an event intended for an international public or an event in which the majority of participants come from outside Québec, where directly related to the nature and recognized purpose of the event, may be both in French and in another language provided that French appears at least as prominently.

O.C. 1756-93, s. 20.

21. A public sign or poster bearing directions for the use of a device permanently installed in a public place may be both in French and in another language provided that French appears at least as prominently.

O.C. 1756-93, s. 21.

22. Unless the vehicle used is a news medium which publishes or broadcasts in French, public signs and posters and commercial advertising concerning a cultural or educational product within the meaning of section 2, a cultural or educational activity within the meaning of section 11 or a news medium may be exclusively in a language other than French provided that the content of the cultural or educational product is in that other language, the activity is held in that other language or the news medium publishes or broadcasts in that other language, as the case may be.

O.C. 1756-93, s. 22.

23. Public signs and posters displayed by a natural person for non-professional and non-commercial purposes may be in the language of the person’s choice.

O.C. 1756-93, s. 23.

24. Public signs and posters and commercial advertising concerning a convention, conference, fair or exhibition intended solely for a specialized or limited public may, during the event, be exclusively in a language other than French.

O.C. 1756-93, s. 24.

25. On public signs and posters and in commercial advertising, the following may appear exclusively in a language other than French:

(1) the firm name of a firm established exclusively outside Québec;

(2) a name of origin, the denomination of an exotic product or foreign specialty, a heraldic motto or any other non-commercial motto;

(4) a recognized trade mark within the meaning of the Trade Marks Act (R.S.C. 1985, c. T-13), unless a French version has been registered.

O.C. 1756-93, s. 25.

Annotations

Québec (Procureure générale) v. Magasins Best Buy ltée, 2015 QCCA 747 (CanLII)

[…]

[12] What are these circumstances?

[13] They are stated in section 25 of the Regulation:

25. Dans l'affichage public et la publicité commerciale, peuvent être rédigés uniquement dans une autre langue que le français : 1° le nom d'une entreprise établie exclusivement hors du Québec;	25. On public signs and posters and in commercial advertising, the following may appear exclusively in a language other than French: (1) the firm name of a firm established exclusively outside Québec;
2° une appellation d'origine, la dénomination d'un produit exotique ou d'une spécialité étrangère, une devise héraldique ou toute autre devise non commerciale;	(2) a name of origin, the denomination of an exotic product or foreign specialty, a heraldic motto or any other non-commercial motto;
3° un toponyme désignant un lieu situé hors du Québec ou un toponyme dans cette autre langue officialisé par la Commission de toponymie du Québec, un patronyme, un prénom ou un nom de personnage, de même qu'un nom distinctif à caractère culturel;	(3) a place name designating a place situated outside Québec or a place name in such other language as officialized by the Commission de toponymie du Québec, a family name, a given name or the name of a personality or character or a distinctive name of a cultural nature; and
4° une marque de commerce reconnue au sens de la Loi sur les marques de commerce (L.R.C. 1985, c. T-13), sauf si une version française en a été déposée.	(4) a recognized trade mark within the meaning of the Trade Marks Act (R.S.C. 1985, c. T-13), unless a French version has been registered.
[Soulignements ajoutés.]

[…]

[27] This provision [section 68 of the Charter] is unequivocal. Its first paragraph authorizes an enterprise to take a name in a language other than French provided that, when it is used, the French name "appears at least as prominently". However – and once again, the use of this adverb signals an exception – when that use is for public signs and posters, the second paragraph permits the use of a name in a language other than French, pursuant to section 58 of the Charter and the regulations enacted thereunder, in this case, section 25 of the Regulation.

Centre sportif St-Eustache v. Québec (Procureur général), 2009 QCCS 3307 (CanLII)

[1] The Appellant owns and operates a large sports center in St-Eustache. Various commercial enterprises, also owned by the Appellant, operate within it.

[2] One enterprise consists of a bowling alley whose registered firm name (raison sociale) is « Amusements Bowl-Mat ». A second enterprise consists of a restaurant whose registered firm name is « Restaurant Oh Daddy ». The Appellant was charged and convicted of having permitted each entity to infringe articles 58 and 205 of the Charte de la langue française, L.R.Q., c. C-11 (« Charte »), which deal with commercial advertising.

[3] In the case of Amusements Bowl-Mat, the only alleged infringement which fell within the four corners of the charge in the statement of offence was the use of the term Bowl-Mat in its signs on site, without including the word Amusements.

[4] In the case of Restaurant Oh Daddy, there were two alleged infringements which fell within the perimeters of the charge in the statement of offence. The first was the use of the term Oh Daddy in its signs on site without including the word Restaurant. The second consisted of a sign on site which stated « Oyster Bar ».

[5] At first instance, the Appellant presented a varied defence. It was submitted that the terms Oh Daddy and Bowl-Mat, standing alone, were recognized trade-marks and as such fell within the exception found at para. 25(4) of the Règlement sur la langue du commerce et des affaires (« Regulation »).

« 25. On public signs and posters and in commercial advertising, the following may appear exclusively in a language other than French:

(4) a recognized trade mark within the meaning of the Trade Marks Act (R.S.C. 1985, c. T-13), unless a French version has been registered. »

[6] As regards the charge involving Amusements Bowl-Mat, it was additionally argued that the word « bowl » was an abbreviation of a word « bowling », which now had been accepted as part of the French language. The use of the abbreviation « bowl », in such circumstances, did not breach the Charte.

[…]

[20] The Court now turns to the trade-mark exception argument.

[21] The Appellant argues that a trade-mark does not have to be registered to receive the protections contained in the Trade-marks Act. This being so, a non-registered trade-mark can fall within the exception found at para. 25(4) of the Regulation (see para. [5] above). The Court would agree.

[22] At first instance, the Appellant produced an abundance of evidence in the form of advertisements placed by Amusement Bowl-Mat to prove that the firm name, or its diminutive – Bowl-Mat – was a trade-mark. In doing so, the Appellant pleaded that it was following the teachings of the Supreme Court as found at para. 54 of the Veuve Clicquot Ponsardin case.

[23] This Court finds that that proof was superfluous. In Veuve Clicquot Ponsardin, the Supreme Court was examining an action in confusion based upon the dispositions of the Trade-marks Act. The factors described in para. 54 which would be relevant to resolve such an action are of no relevance to determine whether one is dealing with a trade-mark which falls within the exception of para. 25(4) of the Regulation. All a defendant has to establish is that the alleged prohibited phrase or name which is targeted for prosecution under the Charte is a trade-mark. It does not have to prove whether it is a famous mark nor the extent of its geographical reach, for example.

[…]

[25] The distinction drawn by the trial court between a trade-mark and a trade-name is relevant. The Trade-marks Act provides protection to both. However, the exception in the Regulation applies only to trade-marks and not to trade-names. The trial court found as a question of fact in para. 28 cited above that the Appellant's use of its name was a trade-name use and not a trade-mark use which was directed to protecting the goodwill of the enterprise. As pointed out in a study of trade-mark law, this distinction is valid.

« The distinction between trade names and trade marks lies mainly in the fact that a trade mark is used in association with vendible commodities or services while a trade name is more properly used as applied to the goodwill of a business. »

[…]

[27] Even if this Court errs in agreeing that the Appellant has advanced a trade-name use which does not fall within the exception to the Regulation, the Appellant would not succeed on this ground of appeal. If the trade-name of the Appellant is also a trade-mark then it would follow that it is the entire registered name – Amusement Bowl-Mat – and not Bowl-Mat which is the trade-mark which would fall within the exception in the Regulation. This conclusion would respect the object and intent of the Charte and the Regulation.

[28] A portion of the preamble to the Charte states:

« PREAMBLE

[…]

(emphasis added)

[29] Article 63 of the Charte reads :

« 63. The name of an enterprise must be in French. »

[30] It is noteworthy that the Office informed the Appellant that if it used its complete registered name – Amusement Bowl-Mat – it would be in conformity with the law (exhibit P-1). It is also noteworthy that besides the exemption for trade-marks, para. 25(1) of the Regulation permits publicity in a language other than French for:

« 25(1) the firm name of a firm established exclusively outside Québec; »

25.1. Where a trade mark is displayed outside an immovable only in a language other than French under paragraph 4 of section 25, a sufficient presence of French must also be ensured on the site, in accordance with this Regulation.

For the purposes of the first paragraph, the presence of French refers to a sign or poster with

(1) a generic term or a description of the products or services concerned;

(2) a slogan;

(3) any other term or indication, favouring the display of information pertaining to the products or services to the benefit of consumers or persons frequenting the site.

O.C. 887-2016, s. 1

25.2. For the purposes of sections 25.1 to 25.5,

(1) trade mark signs or posters outside an immovable means the signs or posters related or attached to an immovable, including its roof, regardless of the materials or method of attachment used; the signs or posters include, in particular, projecting or perpendicular signs, and signs or posters on a bollard or other independent structure.

The following signs and posters are considered to be outside an immovable:

(a) signs or posters outside premises situated in an immovable or a larger property complex. Signs or posters outside premises situated in a mall or a shopping centre, underground or not, are included;

(b) signs or posters inside an immovable or premises, if their installation or characteristics are intended to be seen from the outside.

Trade mark signs or posters appearing on a bollard or other independent structure, including a totem type structure, near an immovable or premises are concerned only if there is no other outside sign or poster on which the trade mark appears.

In the case of a totem type structure, signs or posters on the structure are also excluded if more than 2 trade marks appear on the structure;

(2) “immovable” : means a building and any structure intended to receive at least 1 person for the carrying on of activities, regardless of the materials used, excluding a temporary or seasonal facility;

(3) “premises” : means a space, closed or not, devoted to an activity, in particular a stand or counter intended for the sale of products in a mall, excluding a temporary or seasonal facility.

O.C. 887-2016, s. 1

25.3. Within the meaning of section 25.1, the sufficient presence of French means signs or posters whose qualities

(1) give French permanent visibility, similar to that of the trade mark displayed; and

(2) ensure its legibility in the same visual field as that mainly covered by the trade mark signs or posters.

Signs or posters in French that, in relation to the trade mark signs or posters, are designed, lighted and situated so as to make them easy to read, both at the same time, at all times when the trade mark is legible, without the signs or posters being necessarily present in the same place, in the same number, in the same materials or in the same size are considered to meet those requirements.

O.C. 887-2016, s. 1

25.4. Despite subparagraph 2 of the first paragraph of section 25.3, legibility of a sign or poster in French must be evaluated,

(1) in the case of a sign or poster outside an immovable situated on a street bordered by a sidewalk, from the sidewalk along the façade on which the trade mark sign or poster appears;

(2) in the case of a sign or poster outside premises situated in an immovable or a larger property complex such as a mall, from the centre of the corridor or space facing the premises;

(3) in the case of a trade mark sign or poster visible from a highway, from the highway.

O.C. 887-2016, s. 1

25.5. For the purposes of sections 25.1 to 25.4,

(1) the following signs or posters in French are not taken into account:

(a) business hours, telephone numbers and addresses;

(b) numbers and percentages;

(d) a term requiring for its legibility to be within a radius of less than 1 metre, except if the legibility of the trade mark also requires it;

(2) signs or posters that are of a precarious nature— through their materials or the manner in which the sign or poster is attached—, in particular signs or posters in French likely to be easily removed or tore off, are not considered to ensure permanent visibility of French, unless the display system is the subject of measures for guaranteeing the presence or replacement of the sign or poster, the proof of which lies with the person who wishes to claim the benefit of the sign or poster.

O.C. 887-2016, s. 1

26. Nothing in this Division precludes the use of any artificial combination of letters, syllables or figures or the use of pictographs, figures or initials on public signs and posters and in commercial advertising.

O.C. 1756-93, s. 26.

Division IV – Expression that may specify firm name

27. An expression taken from a language other than French may appear in a firm name to specify it provided that the expression is used with a generic term in the French language.

O.C. 1756-93, s. 27.

Annotations

Foccroulle-Ménard v. Registraire des entreprises , 2014 CanLII 34448 (QC TAQ) [judgment available in French only]

[OUR TRANSLATION]

[1] The applicant, Xavier Foccroulle-Ménard, is contesting a decision by the Registraire des entreprises (the “Registraire”) on July 29, 2013, under the Act respecting the legal publicity of enterprises (the “Act”).

[2] With this decision, the Registraire confirmed its decision dated July 12, 2013, to refuse to consider the name “Wellarc”, proposed in the registration declaration for Quebec Enterprise Number (NEQ) 2269306082 and relating to application number 020200015727719. The Registraire ruled that the name “Wellarc” is in breach of the Charter of the French language (the “Charter”).

[…]

[23] The legislator has allowed businesses some latitude in deciding how to stand out in the market. However, the fundamental principle dictated by section 63 of the Charter should not be ignored. The leeway granted in section 67 of the Charter appears to be in direct conflict with the legislator’s will as expressed in section 63. This incompatibility is only apparent, however: the legislator has now set up a safeguard that mitigates options available through section 67 of the Charter by adopting section 27 of the Regulation [Regulation respecting the language of commerce and business] cited above.

[24] The legislator has imposed an obligation on any business wishing to use an expression (word string, single word, combination of syllables or expressions, etc.), taken from a language other than French, as a specific term or part of a specific term in a company name. Such a business is required to add a generic term in the French language.

[25] As counsel for the respondent has noted, the legislator is referring to expressions taken from another language, not single words or groups of words. The legislator had no choice but to use a much broader description: the almost unlimited freedom granted by section 67 of the Charter (the possibility of coining a word from any and all languages, linguistic roots, etc.) could all too easily have been used to skirt the fundamental principle of section 63 if section 27 of the Regulation only referred to words in another language. Bypassing section 63 of the Charter would then simply have entailed removing a letter or putting together two words in another language to create a word not found in dictionaries or language reference works. The legislator’s intent was not to have the spirit of the Act, the Charter, part of which was clearly set out in section 63, bypassed this easily.

[26] Counsel for the respondent is fully justified in referring to an annotated version of the Charter, in which the Office québécois de la langue française does in fact specify the concept of “expressions taken from other languages” in section 67 as follows:

[TRANSLATION]

The term “expressions taken from other languages” is understood to mean any expression formed using one or more words from another language, as well as a distorted word or one that retains its meaning in another language despite a change in one element (e.g., “nite” instead of “night”, “lite” instead of “light”), or a compound made up of several words or syllables that still has meaning in another language.

[27] This interpretation supports the Registraire’s position in the present matter. The reference, in the French version of section 67 of the Charter, to “expressions tirées d’autres langues” is essentially identical to the French version of section 27 of the Regulation, namely “expression tirée d’une autre langue”. The Tribunal agrees to assign the same meaning to them, which is the meaning expressed by the Office québécois de la langue française and used by the Registraire.

Division V – Final provisions

28. (Omitted).

O.C. 1756-93, s. 28.

29. (Omitted).

O.C. 1756-93, s. 29.

Regulation respecting the signs and posters of the civil administration, CQLR c. C-11, r. 1

1. Along any public highway within the meaning of section 4 of the Highway Safety Code (chapter C-24.2) that is used by visitors to enter or leave Québec, the signs and posters of the civil administration that are intended for visitors may be both in French and in another language up to a distance of 15 km from the point of entry into Québec, provided that French is markedly predominant within the meaning of the regulation defining the scope of that expression for the purposes of the Charter of the French language (chapter C-11).

O.C. 1756-93, s. 1.

2. Subject to section 3, the signs and posters of the civil administration concerning activities similar to those of business firms may be both in French and in another language, provided that French is markedly predominant within the meaning of the regulation defining the scope of that expression for the purposes of the Charter of the French language (chapter C-11), unless

(1) the signs and posters are billboards or signs of any other type having an area of 16 m² or more and visible from any public highway within the meaning of section 4 of the Highway Safety Code (chapter C-24.2); or

(2) the signs and posters are displayed in or on any public means of transportation, in the accesses thereto or in bus shelters.

O.C. 1756-93, s. 2.

3. The signs and posters of a museum, a botanical garden, a zoo, a cultural or scientific exhibition, a place used to greet or inform tourists or any other tourist attraction may, on the premises thereof, be both in French and in another language, provided that French appears at least as prominently.

O.C. 1756-93, s. 3.

4. (Omitted).

O.C. 1756-93, s. 4.

Regulation respecting the issue of certificates of knowledge of the official language for the purpose of admission to professional orders and certain equivalents to those certificates, CQLR c. C-11, r. 4

1. An examining committee shall be responsible for evaluating the appropriate knowledge of the official language for the practice of a profession or a category of professions by preparing an examination to measure

(1) oral French comprehension;

(2) written French comprehension;

(3) oral French expression;

(4) written French expression.

There shall be a part of the examination corresponding to each of those criteria; a candidate must pass all 4 parts of the examination.

O.C. 1757-93, s. 1.

2. The committee shall be composed of 3 members, one of whom shall be appointed by the Office québécois de la langue française, one by the Office des professions du Québec and one by the Minister responsible for the administration of the Charter of the French language.

O.C. 1757-93, s. 2.

3. The Office québécois de la langue française shall hold examination sessions at least 6 times a year, at such places and dates as it may fix. The members of the examining committee may be present at those sessions.

O.C. 1757-93, s. 3.

4. A person wishing to sit for an examination shall apply to the Office, which shall indicate to him the place, date and time of the examination. Where a person sits for an examination, the Office shall transmit his results to him within 2 weeks following the date of the examination session and shall also inform the professional order concerned and the Office des professions du Québec.

O.C. 1757-93, s. 4.

5. The Office shall issue to a person having passed the examination a certificate indicating that he possesses an appropriate knowledge of French for the practice of his profession.

O.C. 1757-93, s. 5.

6. Where a person fails all or a part of the examination, he may, within the month following the date on which he receives his results, apply in writing to the Office for a review of his examination.

O.C. 1757-93, s. 6.

7. The Office shall review the examination within 2 weeks following the date of the application and shall inform the candidate of its decision in writing.

O.C. 1757-93, s. 7.

8. A person may sit for the examination every 3 months and as many times as he wishes.

O.C. 1757-93, s. 8.

9. The following are considered to be equivalent to the certificate issued by the Office québécois de la langue française under section 5:

(1) a certificate issued by the Régie de la langue française in accordance with the Regulation respecting a working knowledge of the French language necessary to obtain a permit from a professional corporation (O.C. 2050-76, 76-06-09);

(2) a document issued before 7 September 1977 certifying that a person possessed a working knowledge of the French language, issued in accordance with the Regulation concerning standards for evaluating the working knowledge of French of an immigrant wishing to be admitted to the study or the practice of a profession in Québec (O.C. 936-71, 71-03-10).

O.C. 1757-93, s. 9.

10. (Omitted).

O.C. 1757-93, s. 10.

11. (Omitted).

O.C. 1757-93, s. 11.

Regulation respecting the language of instruction of children residing on Indian reserves, CQLR c. C-11, r. 8

1. A school body is authorized to make an exception to the application of the provisions of Chapter VIII of Title I of the Charter of the French language (chapter C-11) in respect of a child who resides or has resided on an Indian reserve, in a settlement in which a native community lives or on Category I and Category I-N lands within the meaning of the Act respecting the land regime in the James Bay and New Québec territories (chapter R-13.1), on the following conditions and in the following circumstances:

(1) the child is receiving instruction primarily in English or in a native language on an Indian reserve, in a settlement in which a native community lives or on Category I and Category I-N lands within the meaning of the Act respecting the land regime in the James Bay and New Québec territories, or received such instruction during the last school year;

(2) the child leaves the Indian reserve, settlement or lands to continue his studies outside the reserve, settlement or lands; and

(3) authorization to make an exception to the application of the provisions of Chapter VIII of Title I of the Charter is granted in respect of the child.

O.C. 2820-84, s. 1; O.C. 1758-93, s. 1.

2. The Minister of Education, Recreation and Sports shall issue to the school body an exemption for any child mentioned in section 1, subject to the following conditions:

(1) a certificate of school attendance of the child in a school located on an Indian reserve, in a settlement in which a native community lives or on Category I and Category I-N lands within the meaning of the Act respecting the land regime in the James Bay and New Québec territories (chapter R-13.1) for the current school year or for the preceding school year shall be submitted to the Minister by the school body;

(2) the certificate of school attendance mentioned in subparagraph 1 shall indicate that the instruction given to the child during the current school year or during the preceding school year was given primarily in English or in a native language, and the certificate shall be signed by the principal of the school attended;

(3) the child’s birth certificate, bearing the names of his parents, shall be submitted to the Minister.

O.C. 2820-84, s. 2; O.C. 1758-93, s. 2.

3. (Omitted).

O.C. 2820-84, s. 3.

Regulation defining the scope of the expression “markedly predominant” for the purposes of the Charter of the French language, CQLR c. C-11, r. 11

1. In signs and posters of the civil administration, public signs and posters and posted commercial advertising that are both in French and in another language, French is markedly predominant where the text in French has a much greater visual impact than the text in the other language.

O.C. 1756-93, s. 1.

2. Where texts both in French and in another language appear on the same sign or poster, the text in French is deemed to have a much greater visual impact if the following conditions are met:

(1) the space allotted to the text in French is at least twice as large as the space allotted to the text in the other language;

(2) the characters used in the text in French are at least twice as large as those used in the text in the other language; and

(3) the other characteristics of the sign or poster do not have the effect of reducing the visual impact of the text in French.

O.C. 1756-93, s. 2.

3. Where texts both in French and in another language appear on separate signs or posters of the same size, the text in French is deemed to have a much greater visual impact if the following conditions are met:

(1) the signs and posters bearing the text in French are at least twice as numerous as those bearing the text in the other language;

(2) the characters used in the text in French are at least as large as those used in the text in the other language; and

(3) the other characteristics of the signs or posters do not have the effect of reducing the visual impact of the text in French.

O.C. 1756-93, s. 3.

4. Where texts both in French and in another language appear on separate signs or posters of a different size, the text in French is deemed to have a much greater visual impact if the following conditions are met:

(1) the signs and posters bearing the text in French are at least as numerous as those bearing the text in the other language;

(2) the signs or posters bearing the text in French are at least twice as large as those bearing the text in the other language;

(3) the characters used in the text in French are at least twice as large as those used in the text in the other language; and

(4) the other characteristics of the signs or posters do not have the effect of reducing the visual impact of the text in French.

O.C. 1756-93, s. 4.

5. (Omitted).

O.C. 1756-93, s. 5.

6. (Omitted).

O.C. 1756-93, s. 6.

Regulation respecting the criteria and weighting used to consider instruction in English received in a private educational institution not accredited for the purposes of subsidies, CQLR c. C-11, r. 2.1

Division I – Object and scope

1. The purpose of this Regulation is to determine the analysis framework to be used for eligibility requests referred to in section 2 in order to assess whether instruction received in English constitutes the major part of the instruction received by a child.

O.C. 862-2010, s. 1.

2. This Regulation applies to all requests for eligibility to receive instruction in English, submitted under paragraphs 1 and 2 of section 73 of the Charter of the French language (chapter C-11), in which the instruction invoked in support of the request was received in Québec after 1 October 2002 in one or more private educational institutions not accredited for the purposes of subsidies that hold a permit under the Act respecting private education (chapter E-9.1).

Despite the first paragraph, this Regulation does not apply to an eligibility request when the instruction received in English invoked in support of the request was received in an institution that ceased operating during the period from 1 October 2002 to 22 October 2010.

Nor does it apply when the elementary- or secondary-level instruction invoked in support of the request was received in an institution that offers only some of its classes in English at that level of instruction.

O.C. 862-2010, s. 2.

Division II – Criteria, interpretive principles and passing score

3. The criteria and weighting to be used in assessing whether instruction received in English constitutes the major part of the instruction received by a child are described in Schedule 1 under the 3 following divisions:

Division 1 – "Schooling"

This division deals with the duration of the instruction received in English that is liable to reveal a genuine commitment to pursue studies in English, given the environment in which the schooling invoked in support of the request took place.

Among other elements, the following are considered: the different types of educational institutions attended and the characteristics of their enrolments that illustrate their relationship with the Québec anglophone minority, as well as any special educational projects or programs of study the institution offers to meet the needs of certain groups of students.

Division 2 - "Consistent, true commitment"

This division deals with the family context and other elements of the child’s environment that may shed light on the authenticity of the commitment to an English-language education, especially in terms of the continuity and consistency of this commitment.

Division 3 - "Specific situation and overall education"

This division deals with related or distinct contextual elements that allow a more in-depth assessment, with respect to the child’s personal and family situation, of the authenticity of the commitment made.

This division makes it possible to complete, enrich or nuance the assessments made under the previous divisions, as needed, according to the circumstances and contexts specific to the case examined. Specifically, this division concerns elements other than those explored under the previous divisions, such as what prompted the choice of or change in educational institution, when this choice or change was made during the child’s schooling, the instruction received in a language other than English by the parents of the child concerned, the importance of continuity in the context of special programs as well as the proportion of courses received in each language of instruction.

O.C. 862-2010, s. 3.

4. When interpreting and applying Schedule 1, in particular Division 3, it is important, among other things, to make a distinction between cases that demonstrate a genuine commitment to an English-language education, and cases where attendance at a private educational institution described in the first paragraph of section 2 could simply denote a desire to create an artificial educational pathway in order to circumvent the Charter of the French language.

O.C. 862-2010, s. 4.

5. For an eligibility request submitted under section 2 to be granted, a passing score of 15 points, calculated according to the weighting set out in Schedule 1, must be attributed to it.

An eligibility request that is attributed this 15-point passing score is nonetheless subject to all other applicable conditions, including the requirement to provide proof of citizenship or proof of filiation

O.C. 862-2010, s. 5.

Division III – Classification of institutions and other rules for applying schedule I and the weighting system

§ 1. — Application of Schedule 1

6. All divisions of Schedule 1 are applicable to eligibility requests referred to in section 2, whether submitted under paragraph 1 or paragraph 2 of section 73 of the Charter of the French language (chapter C-11), except for subdivisions 2.2 and 2.3 of Schedule 1, which do not apply to requests submitted under paragraph 1 of section 73 of the Charter.

O.C. 862-2010, s. 6.

§ 2. — Classification of institutions

7. In this Regulation, “private educational institution” means a private educational institution described in the first paragraph of section 2 that offers elementary- or secondary-level instructional services, or both, and that offers one or more courses in English, in addition to the English course.

O.C. 862-2010, s. 7.

8. A private educational institution may be given more than one of the classifications defined below, depending on its characteristics and the rules set out in this Regulation.

A classification is assigned for each level of instruction, elementary or secondary, offered by the institution, subject to the situation referred to in paragraph 2 of the definition of a type A English-language institution given in section 9, where the classification assigned applies to both levels of instruction.

When a permit issued under the Act respecting private education (chapter E-9.1) authorizes the operation of more than one facility, a classification must also be assigned to each facility in which instructional services are provided.

O.C. 862-2010, s. 8.

9. In this Regulation,

“type A English-language institution” means a private educational institution to which one of the following situations applies:

(1) 60% or more of the students enrolled in the first 3 years of elementary or secondary school have a certificate of eligibility or a special authorization to receive instruction in English under the Charter of the French language (chapter C-11); or

(2) The institution provides elementary- and secondary-level instruction and satisfies the following 2 criteria:

(a) 70% or more of the students at the elementary level go on to attend the institution throughout their secondary studies; and

(b) 70% or more of the hours of instruction are provided in English, at both the elementary and secondary levels, the proportion of English instruction having been determined by the institution concerned and certified by a member of the professional order of accountants authorized by law to audit books and accounts;

“type B English-language institution” means a private educational institution that is not a type A or type C institution;

“type C institution” means a private educational institution that is specially dedicated to providing bilingual or multilingual learning to students in the context of an immersion or other program and less than 60% of whose students have a certificate of eligibility or special authorization to receive instruction in English under the Charter of the French language;

“French-language institution” means a public French-language school or a private educational institution, subsidized or not, whose elementary- and secondary-level courses, with the exception of language courses, including English courses, are offered in French.

O.C. 862-2010, s. 9.

10. Private educational institutions that have been providing instructional services for 3 years or less and that were not created following the division or merger of existing private educational institutions are temporarily considered, during their first 3 years of operation, as type C educational institutions whose percentage of students who have a certificate of eligibility or an authorization to receive instruction in English is between 0% and 25%.

O.C. 862-2010, s. 10.

§ 3. — Other rules for applying Schedule 1 and the weighting system

11. The following rules apply in the calculation of a percentage mentioned in this Regulation:

(1) percentages must be calculated annually for each institution by averaging the percentages for the previous 3 school years;

(2) in the case of educational institutions created following the division or merger of existing educational institutions, the calculation must take into account the percentages of the institution or institutions from which they originate;

(3) the percentage of students who are eligible to receive instruction in English is based on the number of students in the first 3 grades of elementary education or the first 3 grades of secondary education offered by the institution, depending on the case;

(4) fractions are rounded up to the next whole number; and

(5) data from the Ministère de l’Éducation, du Loisir et du Sport is used to calculate the percentage; the department makes the data available as well as the classification assigned to educational institutions on the basis of the data.

O.C. 862-2010, s. 11.

12. If the instruction invoked in support of an eligibility request was received in private educational institutions that have different classifications, subdivision 1.1 of Schedule 1 is applied to the most significant portion of the instruction received. However, if no instruction clearly stands out, points are attributed to each educational institution attended as though it had provided the child’s entire schooling and the average number of points for those institutions is retained.

O.C. 862-2010, s. 12.

Division IV – Transitional and final provisions

13. Despite paragraph 1 of section 11, during the first 3 years of application of this Regulation, percentages for a given year are based on the average of the percentages for the previous 2 school years.

O.C. 862-2010, s. 13.

14. For the period from 22 October 2010 to 30 June 2011, and for the 2011-2012 school year, the percentage of students attending a private educational institution who have a certificate of eligibility or a special authorization to receive instruction in English under the Charter of the French language (chapter C-11) is the higher of

(1) the percentage determined in accordance with the provisions of Division III; and

(2) the percentage that corresponds to the average of the percentages of elementary school students who attended secondary school, in the previous 2 years, at a school under the jurisdiction of an English-language school board, a private English-language educational institution accredited for the purposes of subsidies under the Act respecting private education (chapter E-9.1), or the same institution.

O.C. 862-2010, s. 14.

15. The percentage determined for the period from 22 October 2010 to 30 June 2011 is deemed to have remained the same since 1 October 2002 for the elementary or secondary school enrolments of the same institution, or, if the institution began operating after that date, since it began operating.

O.C. 862-2010, s. 15.

16. (Omitted).

O.C. 862-2010, s. 16.

Annotations

AB v. Québec (Éducation, Loisir et Sport), 2012 CanLII 44730 (QC TAQ) [judgment available in French only]

[OUR TRANSLATION]

[1] This Tribunal is asked to consider an application made in a timely fashion by the applicant (Mr. XXX), who is contesting a decision by the Minister of Education, Recreation and Sports (the “Minister”) dated October 3, 2011, and rendered by a person appointed for this purpose.

[2] In her decision, the Minister refused to declare Mr. XXX’s daughter eligible for English-language instruction in a subsidized public or private school in Quebec.

[…]

[24] One thing should be understood, the addition of this section via the Act following upon the court decisions on the language of instruction and the adoption of the Regulation [Regulation respecting the criteria and weighting used to consider instruction in English received in a private educational institution not accredited for the purposes of subsidies] reflect the criteria developed by the Supreme Court of Canada, especially in the Solski and Nguyen judgments.

[25] The Solski decision, in particular, states that by effect of section 59 of the Constitution Act, 1982 “the framers also rejected the freedom to choose the language of instruction in Quebec”.

[26] It also states that the “major part” of instruction in English criterion defined in section 73 of the Charter should be interpreted both quantitatively and qualitatively.

[27] In accordance with this principle, the assessment of the child’s situation should therefore not only reflect the number of years he or she has attended an English school, but also the genuine commitment to a minority-language education.

[28] In the present case, Mr. XXX cites, as grounds for his position, the major part of the instruction his daughter received in a non-subsidized private English school, a situation that has placed a significant financial burden on him, and will continue to do so if his case is dismissed.

[29] He also claims that she has therefore fulfilled the number of years required by the Regulation to attain the 15-point threshold required, based on the private school she attends, which is ranked as a type A English-language institution.

[30] These grounds are inadequate, however, absent demonstration, in the specific situation and in the child’s overall academic path, of a genuine commitment to an English-language education.

N.B. – See also Schedule 1 of this regulation, which elaborates on the notion of "educational pathway" or "schooling".

Regulation to authorize professional orders to make an exception to the application of section 35 of the Charter of the French language, CQLR c. C-11, r. 10

1. A professional order referred to in Schedule I to the Professional Code (chapter C-26), or that is constituted in accordance with the Code, is authorized to make an exception to the application of section 35 of the Charter of the French language (chapter C-11), in respect of a person who resides or has resided on a reserve, in a settlement in which a native community lives or on Category I and Category I-N lands within the meaning of the Act respecting the land regime in the James Bay and New Québec territories (chapter R-13.1), provided that

(1) the person declares under oath to the Bureau of the professional order that he resides or has resided on a reserve, in a settlement in which a native community lives or on Category I and Category I-N lands; and

(2) the person, despite the fact that he does not have knowledge of the French language appropriate to the practice of his profession, fulfils all the other terms and conditions for the issue of a permit provided for in the Professional Code and, where applicable, in the Act constituting the professional order.

O.C. 1374-93, s. 1.

2. Where a person fulfils the conditions provided for in section 1, the Bureau of the professional order shall issue a permit to that person authorizing him to practise the profession or to use the title, as the case may be, only on a reserve, in a settlement in which a native community lives or on Category I and Category I-N lands.

O.C. 1374-93, s. 2.

3. (Omitted).

O.C. 1374-93, s. 3.

Order in Council respecting the application of section 86.1 of the Charter of the French language to English-speaking persons from the New Brunswick, CQLR c. C-11, r. 2

1. Children whose father or mother received the greater part of his or her elementary instruction in English elsewhere in Canada and, before establishing domicile in Québec, was domiciled in New Brunswick, are authorized generally to receive instruction in English, at the request of their father or mother.

O.C. 1525-84; O.C. 22-94.

2. Children whose father or mother has established domicile in Québec, and who, during the last school year or since the beginning of the current school year, received elementary or secondary instruction in English in New Brunswick are authorized generally to receive instruction in English, at the request of their father or mother.

O.C. 1525-84; O.C. 22-94.

3. The younger brothers and sisters of children covered by this Regulation are authorized generally to receive instruction in English, at the request of one of their parents.

O.C. 1525-84; O.C. 22-94.

4. (Omitted).

O.C. 1525-84

Regulation respecting the exemption from the application of the first paragraph of section 72 of the Charter of the French language which may be granted to children having serious learning disabilities, CQLR c. C-11, r. 6

1. Children may be exempted from the application of the first paragraph of section 72 of the Charter of the French language (chapter C-11) if, at the time the request for exemption is made, they have serious learning disabilities and are in one of the following classes:

(1) children having serious learning disabilities demonstrated by a generalized academic delay of 2 or more years;

(2) children having serious learning disabilities demonstrated by a delay of 1 year or more in written communication or mathematics, if the disabilities are caused by characterized dyslexia, dyscalculia or dysorthographia that is persistent despite corrective intervention by a specialized teacher; or

(3) children having serious learning disabilities demonstrated by a language, perception and psychomotor disability caused by a mental deficiency or by a severe socio-affective maladjustment or by a physical or sensory impairment that is persistent despite corrective intervention by a professional within the meaning of the Professional Code (chapter C-26) who is certified to treat such an impairment or deficiency in children.

For the purposes of this section, “specialized teacher” means a teacher who is the holder of a teaching diploma or teaching certificate with specialization in teaching children with learning disabilities or who is the holder of a teaching diploma and has not less than 1 year of experience in teaching children with learning disabilities.

O.C. 1758-93, s. 1.

Annotations

M.G. v. Québec (Éducation, Loisir et Sport), 2009 CanLII 12448 (QC TAQ) [judgment available in French only]

[OUR TRANSLATION]

[1] The applicant is contesting a decision by the respondent, the Minister of Education, Recreation and Sports, dated July 18, 2007, in which the applicant is refused eligibility for X, her son, to receive instruction in English, pursuant to the Charter of the French language.

[…]

[4] X, the child, was born on […], 1996. On February 28, 2007, the applicant applied to have her son declared eligible to attend English-language school, on the grounds that he has serious learning disabilities. We understand, from the psychologist’s report, that the application is based on specific grounds: the child has serious learning disabilities demonstrated by a delay of one year or more in written communication or mathematics, and these disabilities are caused by characterized dyslexia, dyscalculia or dysorthographia that is persistent despite corrective intervention by a specialized teacher.

[…]

[14] First of all, we would point out that these legislative provisions, which are exceptions to the principle of French-language instruction, should be strictly interpreted. The criteria for granting the exemption are clear and must be met if the child is to receive English-language education. The child’s learning disabilities must be demonstrated by a delay, in written French or mathematics, of one year or more. Additionally, the cause of these disabilities must be shown to include dyslexia that is persistent despite corrective intervention by a specialized teacher. Evidence that instruction in English is required to help further the child’s learning must also be presented.

[…]

[16] That Child X presents with learning disabilities cannot be denied, but the proof does not establish that said disabilities are caused by dyslexia, dyscalculia or dysorthographia.

[17] On the other hand, the Regulation [Regulation respecting the exemption from the application of the first paragraph of section 72 of the Charter of the French language which may be granted to children having serious learning disabilities] has another requirement: that these disabilities are persistent despite corrective intervention by a specialized teacher. In the matter at hand, however, the proof runs counter to the applicant’s affirmation that her child is not making any progress. First of all, although the child repeated Grade 1 and has had difficulty passing each year, he has made progress through the years. In the adapted intervention plan, the evaluations completed in January 2007 state that there has been [TRANSLATION] “lots of improvement since the medication. The goal is, nonetheless, yet to be achieved.”

[…]

[19] The Tribunal notes that the adapted intervention plan demonstrates the need to set goals and to support the child in order to see him progress. However, the terms “status quo” and “regression” cannot be used in discussing this child’s progress. Moreover, the Tribunal notes with surprise that, when asked for the main reason why the child should receive English-language education, the psychologist, Lena Celine Moise, replied, “Child’s language spoken at home is English.” She does not say that English would be beneficial for the child’s learning, nor does she refer to any problem cited in section 1 of the Regulation.

[20] The Tribunal would also point out to the applicant that it understands her good intentions; however, the Tribunal cannot exercise jurisdiction in equity or for humanitarian reasons. In this regard, the applicant was advised, in the decision of July 18, 2007, that section 85.1 of the Charter gives her thirty days to submit her request, in writing, to a review committee if a serious family or humanitarian situation exists that could justify her child being declared eligible for English-language education by the Minister of Education, Recreation and Sports. It appears that her request was not submitted to the Minister.

M. L. C. v. Québec (Éducation), 2003 CanLII 64047 (QC TAQ) [judgment available in French only]

[OUR TRANSLATION]

[1] The Tribunal heard an appeal of two decisions dated September 4, 2002 and May 29, 2003, which were handed down by the Minister of Education’s appointee, the respondent and refused eligibility for the applicant’s son, A., to receive English-language instruction in Quebec.

[…]

[51] No section in the Regulation [Regulation respecting the exemption from the application of the first paragraph of section 72 of the Charter of the French language which may be granted to children having serious learning disabilities] states that the failure to comply with each and every procedural formality automatically signifies the rejection of the request for exemption.

[52] Moreover, in each of the above-cited matters, where failure to meet any of the procedural requirements set out in the Regulation had been observed, the Tribunal nonetheless made every effort to determine if the child did, in fact, have serious learning disabilities and belonged to one of the categories listed in section 1 of the Regulation.

[53] The Tribunal does not believe that lack of compliance with any of the procedural formalities set out in sections 2 et seq. of the Regulation is, on its own, fatal to a request for exemption made pursuant to section 81 of the Charter, if, all of the evidence demonstrates that the child has serious learning disabilities and falls into any of the categories listed in section 1 of the Regulation.

[54] In other words, non-compliance by the applicant with any of the procedural formalities set out in the Regulation does not create an issue estoppel to the request for exemption made under section 81 and section 1 of the Regulation. The request must, in all cases, be reviewed on its merits and the case decided in terms of the existence or absence of serious learning disabilities in a child who falls in any of the categories referred to in section 1 of the Regulation.

[55] The Tribunal finds that its position in this respect is in line with the principle decreed by article 33 of the Civil Code of Québec, i.e., that decisions about a child must be in his or her interest and with respect for his or her rights. In that regard, the Superior Court stated the following:

[TRANSLATION]

Every decision concerning a child shall be taken in light of the child’s interests and the respect of his rights (s. 33 CCQ). Consideration is given, in addition to the moral, intellectual, emotional and physical needs of the child, to the child’s age, health, personality and family environment, and to the other aspects of his situation.

The best interest of the child is the cornerstone of decisions that must be made in the child’s regard, whatever the nature and purpose of said decisions, be they judicial, administrative or private.

(Our emphasis)

[56] It is an affront to the principle just cited to reject a request for exemption for a child suffering from serious learning disabilities who belongs to any of the categories listed in section 1 of the Regulation, solely on the grounds of partial non-compliance with the procedure associated with this request.

2. A request for exemption from the application of the first paragraph of section 72 of the Charter by reason of serious learning disabilities shall be submitted to a school body.

The school body shall have the child evaluated by a psychologist designated by it and entered on the roll of the Ordre professionnel des psychologues du Québec.

For the purposes of this Regulation, school bodies include, in addition to those mentioned in the Schedule to the Charter, the private educational institutions governed by the Act respecting private education (chapter E-9.1).

O.C. 1758-93, s. 2.

3. The evaluation of the designated psychologist shall,

(1) where the child is believed to be in one of the classes referred to in subparagraphs 1 and 2 of the first paragraph of section 1, be accompanied by a report stating reasons and indicating whether the child is in the class referred to in subparagraph 1 or in the class referred to in subparagraph 2 of the first paragraph of section 1; the report shall be based on the psychoeducational evaluation of an education consultant designated by the school body; the evaluation shall explain the situation of the child in relation to the school curricula;

(2) where the child has serious learning disabilities believed to be caused by a physical or sensory impairment that is persistent despite corrective intervention by a professional referred to in subparagraph 3 of the first paragraph of section 1, be accompanied by a report stating reasons and indicating whether the child is in the class referred to in subparagraph 3; the report shall be based on a physician’s certificate establishing whether the child has such an impairment and shall state the physician’s name and address without indicating, however, the nature of the physical or sensory impairment;

(3) where the child has serious learning disabilities believed to be caused by a mental deficiency or by a severe socio-affective malajustment, be accompanied by a report indicating whether the child is in the class referred to in subparagraph 3 of the first paragraph of section 1.

O.C. 1758-93, s. 3.

4. The school body shall forward the request for exemption, for a decision, to the person designated by the Minister of Education, Recreation and Sports under section 75 of the Charter, together with the psychologist’s evaluation and the child’s birth certificate, which must state his parents’ names. Failing such a birth certificate, any other official document issued by a competent authority and establishing the date of birth, sex and filiation of the child shall be produced.

O.C. 1758-93, s. 4.

5. Any request for exemption for the brother or sister of a child having serious learning disabilities who has been exempted from the application of the first paragraph of section 72 of the Charter shall be accompanied by a copy of the child’s certificate of eligibility and the birth certificate, stating the parents’ names, of the brother or sister for whom the request is made. Failing such a birth certificate, any other official document issued by a competent authority and establishing the date of birth, sex and filiation of the child shall be produced.

O.C. 1758-93, s. 5.

6. Where a request for eligibility is incomplete because the required information or documents have not been provided, the designated person shall notify in writing the person who made the request of the missing information or documents and the deadline by which such information or documents are to be provided. A copy of such notice shall be forwarded to the school body.

If the required information or documents are not provided within 90 days of the mailing date of the notice, the designated person shall make his decision on the basis of the incomplete request forwarded to him.

O.C. 1758-93, s. 6.

7. The designated person shall communicate in writing to the person who made the request his decision regarding the child’s eligibility to receive instruction in English. If the child is declared eligible, the designated person shall issue a certificate of eligibility.

The designated person shall inform the school body of his decision in writing.

O.C. 1758-93, s. 7.

8. (Omitted).

O.C. 1758-93, s. 8.

9. (Omitted).

O.C. 1758-93, s. 9.

Regulation respecting the exemption from the application of the first paragraph of section 72 of the Charter of the French language that may be granted to children staying in Québec temporarily, CQLR c. C-11, r. 7

1. A child who comes to Québec for a temporary stay and who is in one of the following situations is exempted from the application of the first paragraph of section 72 of the Charter of the French language (chapter C-11):

(1) he holds a certificate of acceptance issued under section 3.2 of the Act respecting immigration to Québec (chapter I-0.2);

(2) he holds an employment authorization or a student authorization issued in accordance with the Immigration and Refugee Protection Act (S.C. 2001, c. 27);

(3) he is exempted from the obligation to hold a certificate of acceptance, an employment authorization or a student authorization under a statute applicable in Québec;

(4) he is a dependent child of a foreign national who holds a certificate of acceptance;

(5) he is a dependent child of a foreign national who holds an employment authorization or a student authorization issued in accordance with the Immigration and Refugee Protection Act;

(6) he is a dependent child of a foreign national who is exempted from the obligation to hold a certificate of acceptance, an employment authorization or a student authorization under a statute applicable in Québec;

(7) he is a Canadian citizen or permanent resident domiciled in another Canadian province or a territory of Canada or is a dependent child of such a Canadian citizen or permanent resident, who comes to Québec to study or work.

In order to be granted an exemption, the following documents and information shall be filed:

(1) the certificates or authorizations referred to in subparagraphs 1, 2, 4 and 5 of the first paragraph;

(2) where applicable, a document issued by a competent authority in immigration, certifying

(a) that the child or the foreign national who has charge of him is exempted under subparagraph 3 or 6 of the first paragraph and specifying the duration of the stay; or

(b) that a permanent resident referred to in subparagraph 7 of the first paragraph is a permanent resident within the meaning of the Immigration and Refugee Protection Act;

(3) a document demonstrating that the child is a dependent child of a foreign national referred to in subparagraphs 4 to 6 of the first paragraph or of a Canadian citizen or permanent resident referred to in subparagraph 7 of the first paragraph;

(4) where applicable, the following sworn declarations:

(a) one by the Canadian citizen or permanent resident referred to in subparagraph 7 of the first paragraph, certifying that the stay is temporary;

(b) one by the person in charge of the educational institution that will be attended or by the employer, confirming that the studies or employment are temporary.

Notwithstanding the foregoing, where refugee status within the meaning of the Immigration and Refugee Protection Act is sought for the child or the foreign national he is accompanying or if the child or foreign national he is accompanying obtains a selection certificate issued under section 3.1 of the Act respecting immigration to Québec, the exemption may not be granted or, as the case may be, ceases to have effect on 30 June of the school year during which refugee status is sought or during which the selection certificate is issued.

In addition, the exemption referred to in subparagraph 7 of the first paragraph shall not last more than 3 years.

In this Regulation, “foreign national” has the meaning assigned to it by section 2 of the Act respecting immigration to Québec and “dependent child” refers to the child of a foreign national or his spouse’s child, the child of a member of the Canadian Armed Forces or his spouse’s child, or the child of a Canadian citizen or permanent resident or his spouse’s child.

O.C. 608-97, s. 1.

Annotations

P.T. v. Québec (Éducation), 2004 CanLII 66882 (QC TAQ) [judgment available in French only]

[OUR TRANSLATION]

[104] This Regulation [Regulation respecting the exemption from the application of the first paragraph of section 72 of the Charter of the French language that may be granted to children staying in Québec temporarily] is an exception to the basic principle of the Charter of the French language, with respect to language of instruction, which mandates that primary and high-school instruction be provided in French in Quebec.

[105] Section 1 of the Regulation is therefore intended to exempt a subset of residents living temporarily in Quebec from enforcement of the basic principle of the Charter.

[106] This exceptionality renders the criteria by which a child living temporarily in Quebec is allowed to attend an English school restrictive and limited.

[107] Does this context point to a conflict between the difference in treatment set out in section 1 of the Regulation and the intent of subsection 15(1) of the Canadian Charter, in that the applicant’s son would be disadvantaged or subjected to stereotypes or social prejudices, thus infringing on his essential human dignity and freedom?

[108] The undersigned’s reply to this question is “no”, for the following reasons.

[109] Foreign nationals to whom the applicant compares himself, before claiming the exemptions set out in section 1 of the Regulation, are required to meet a number of conditions in order to receive a study or work permit in Quebec and Canada.

[110] As Canadian citizens, however, the applicant and his son do not have to meet any such obligation. They can come and go as they like anywhere in Canada, settle and live where they see fit, study and work without any restrictions other than those present in the Canadian and Quebec labour markets.

[111] Unlike foreign nationals, they do not have to demonstrate that they are only here for a short stay. They can settle, study and work in Quebec for an unlimited time.

[112] The applicant cannot claim that he and his son are entitled to all of the rights and benefits allowed them by virtue of their status as Canadian citizens, while also claiming the few benefits available to foreign nationals, without assuming the obligations related thereto.

[113] As such, comparing the applicant’s situation to that of the group of foreign nationals is not only precarious, as the Attorney General stated in his oral argument, but the disadvantage claimed by the applicant versus foreign nationals, viewed in its original context, also cannot be considered a distinction that infringes on his essential human dignity and freedom.

[114] Finally, the undersigned cannot conclude, as counsel for the applicant did in his reply, that the obligation—which attaches to most citizens of Quebec—to have his son educated in the French language, thus depriving him of the liberty to choose the language of instruction, infringes on his essential human dignity and freedom.

[115] Moreover, there is no proof that exclusion of the applicant’s child from the enforcement of section 1 of the Regulation makes him a victim of stereotypes or political or social prejudice.

[116] It would therefore be inappropriate to conclude that the applicant’s child is a victim of discrimination when compared to foreign nationals, based on his status as a Canadian citizen.

[117] Secondly, counsel for the applicant claims that subsection 1(7) of the Regulation is discriminatory by virtue of subsection 15(1) of the Charter, since it recognizes the rights of Canadian citizens living within Canada, but outside of Quebec – rights to which Canadian citizens living abroad are not entitled.

[118] At the same time, however, counsel does agree that place of residence has never been recognized as grounds for discrimination under subsection 15(1) of the Canadian Charter.

[119] In fact, Major J. of the Supreme Court expressed himself as follows in Siemens v. Manitoba:

“Residence was rejected as an analogous ground in both Haig, supra, and R. v. Turpin, CanLII 98 (SCC), [1989] 1 SCR 1296. Further, the majority in Corbiere v. Canada (Minister of Indian and Northern Affairs), 1999 CanLII 687 (SCC), [1999] 2 SCR 203, clearly stated that the analogous ground recognized in that case was “Aboriginality-residence”, and that “no new water is charted, in the sense of finding residence, in the generalized abstract, to be an analogous ground (para. 15).”

[120] It would therefore be inappropriate to conclude that the applicant’s child is a victim of discrimination when compared to other Canadian citizens, based on his place of residence.

[121] Therefore, based on this analysis, the undersigned can only conclude there is no discrimination under section 15 of the Canadian Charter of Rights and Freedoms.

Regulation specifying the scope of terms and expressions in section 144 of the Charter of the French language and facilitating the application of the Charter, CQLR c. C-11, r. 12

1. In this Regulation, unless the context indicates otherwise,

(a) “agreement” means a special agreement within the meaning of section 144 of the Act;

(b) “Act” means the Charter of the French language;

R.R.Q., 1981, c. C-11, r. 11, s. 1.

2. (Implicitly revoked, 1993, chapter 40, s. 49).

R.R.Q., 1981, c. C-11, r. 11, s. 2.

3. In section 144 of the Act, the expression “special agreements” means the agreements negotiated between the Office and a business firm for the purpose of authorizing the use of a language other than French as the working language of the head office of that business firm and including provisions respecting the following points:

(a) the use of French within Québec for communication with clients, suppliers and the public as well as shareholders and those holding other stock or bond certificates;

(b) the use of French in communications with the management and the personnel of establishments of the business firm in Québec;

(c) the use of French for communication relating to contractual links between the business firm and employees of the head office;

(d) the use of French on inside signs and posters in areas where head office personnel work;

(e) the increase at all levels in the number of persons having a good knowledge of the French language;

(f) the progressive use of French terminology;

(g) the adoption of a hiring, promotion and transfer policy suited to the use of French;

(h) the reasons for the amendment, suspension or cancelling of the agreement.

R.R.Q., 1981, c. C-11, r. 11, s. 3.

Regulation Respecting Requests to Receive Instruction in English, CQLR c. C-11, r. 5

1. Any person wishing to invoke any of the provisions of section 73 or 86.1 of the Charter of the French language (chapter C-11) in order that his child may be declared eligible to receive instruction in English shall address such request in writing to a school body.

For the purposes of this Regulation, the school bodies include, in addition to those mentioned in the Schedule to the Charter, private educational institutions governed by the Act respecting private education (chapter E-9.1).

O.C. 1758-93, s. 1.

2. Any request to have a child declared eligible to receive instruction in English shall be accompanied by a birth certificate of the child stating the names of the father and mother or, failing that, an official document issued by a competent authority and establishing the date of birth, sex and filiation of the child.

O.C. 1758-93, s. 2.

3. Any request based on paragraph 1 of section 73 of the Charter in respect of studies in Canada but outside Québec or on paragraph 2 of that same section shall be accompanied by one of the following documents or a certified true copy thereof:

(1) a certificate showing that the mother or father is a Canadian citizen;

(2) an official document issued by a competent authority and establishing the date and place of birth in Canada of the father or mother; or

(3) the Canadian passport of the father or mother.

O.C. 1758-93, s. 3.

4. A request based on paragraph 1, 3 or 5 of section 73 of the Charter shall be accompanied by an attestation in writing issued by each school body or school attended by the father or mother of the child for whom the request is made, indicating

(1) the period during which the father or mother received elementary instruction there;

(2) the proportion of that instruction received in English in relation to all instruction received; and

(3) the place where that instruction was received.

In addition, any request based on paragraph 5 of section 73 of the Charter shall be accompanied by documentary proof that the father or mother resided in Québec on 26 August 1977. If such proof cannot be provided, the request shall be accompanied by an affidavit that the father or mother resided in Québec on 26 August 1977 and that it is impossible to provide documentary proof of that fact.

In this Regulation, “school” means an educational institution located outside Québec.

O.C. 1758-93, s. 4; I.N. 2016-01-01 (NCCP).

5. A request based on paragraph 2 of section 73 of the Charter shall be accompanied by an attestation in writing issued by each school body or school attended by the child for whom the request is made or, where applicable, attended by the child’s brother or sister, indicating

(1) the period during which the child or, where applicable, the child’s brother or sister, received elementary or secondary instruction there;

(2) the proportion of that instruction received in English in relation to all instruction received; and

(3) the place where that instruction was received.

Any request based on the studies of the child’s brother or sister shall be accompanied by a birth certificate of that brother or sister stating the names of their father and mother. Failing such certificate, any other official document issued by a competent authority and establishing the date of birth, sex and filiation of the brother or sister shall be produced.

O.C. 1758-93, s. 5.

6. Where a certificate of eligibility has been issued for the brother or sister of a child for whom a request is made under paragraph 1, 2, 3 or 5 of section 73 of the Charter, the eligibility of that child may be demonstrated by producing that certificate of eligibility or a certified true copy thereof and the birth certificate of the child’s brother or sister stating the names of their father and mother. Failing such certificate, any other official document issued by a competent authority and establishing the date of birth, sex and filiation of the child shall be produced.

O.C. 1758-93, s. 6.

7. In the case of a child referred to in paragraph 4 of section 73 of the Charter and for whom a certificate of eligibility has not been issued, proof of school attendance shall be shown by submitting the report card for the school year between 1 July 1976 and 30 June 1977 or, failing that, by an attestation in writing issued by the school body attended during that school year.

If the child’s last year of schooling was prior to the school year between 1 July 1976 and 30 June 1977, proof of school attendance shall be shown by an attestation in writing issued by the last school body then attended, together with the child’s last report card, as well as any report cards that the child received up to 30 June 1977.

O.C. 1758-93, s. 7.

8. A child referred to in paragraph 4 of section 73 of the Charter may be declared eligible provided that the certificate of eligibility of his brother or sister or a certified true copy thereof is produced.

Failing production of the certificate of eligibility of the brother or sister, proof of school attendance as prescribed in section 7 shall be shown in respect of the brother or sister.

In addition, a birth certificate of the brother or sister stating the parents’ names shall be produced. Failing such certificate, any other official document issued by a competent authority and establishing the date of birth, sex and filiation of the brother or sister shall be produced.

O.C. 1758-93, s. 8.

9. In the case of a child to whom an order made under section 86.1 of the Charter applies, documentary proof shall be produced of the father’s or mother’s domicile in the province or territory indicated in the order, as well as,

(1) in the cases provided for in subparagraph a of the first paragraph of that section, an attestation in writing issued by each school attended by the father or mother of the child for whom the request is made and indicating

(a) the period during which the father or mother received elementary instruction there;

(b) the proportion of that instruction received in English in relation to all instruction received; and

(2) in the cases provided for in subparagraph b of the first paragraph of that section, an attestation in writing issued by the school attended and indicating

(a) that the child for whom the request is made received elementary or secondary instruction in English during the last school year or has been receiving such instruction since the beginning of the current school year; and

(b) the proportion of that instruction received in English in relation to all instruction received;

(3) in the cases provided for in subparagraph c of the first paragraph of that section, the certificate of eligibility issued to the older brother or sister or a certified true copy thereof, together with a birth certificate of that older brother or sister stating the names of the parents. Failing such birth certificate, any other official document issued by a competent authority and establishing the date of birth, sex and filiation of the older brother or sister shall be produced.

In addition, in the case of subparagraph c of the first paragraph of that section, if it is impossible to provide the certificate of eligibility of the older brother or sister, the attestations provided for in subparagraph 1 or 2, as the case may be, of the first paragraph shall be produced. Where applicable, the attestation referred to in subparagraph 2 of the first paragraph shall be issued in respect of the studies of the older brother or sister.

O.C. 1758-93, s. 9.

10. If it is impossible to produce the attestation referred to in the first paragraph of section 4 or in subparagraph 1 of the first paragraph of section 9 concerning the father’s or mother’s elementary studies, a description of the steps undertaken to obtain such attestation, together with a list of the school bodies and schools where the father or mother received instruction in English, shall be produced.

That description shall be accompanied by any supporting documents that may be in the father’s or mother’s possession concerning his or her elementary studies and an affidavit by the father or mother whose studies are invoked, to the effect that he or she received the major part of his or her instruction in English.

O.C. 1758-93, s. 10; I.N. 2016-01-01 (NCCP).

11. The description referred to in section 10 shall be supported by an attestation issued by each school body or school attended by the father or mother, to the effect that the major part of elementary instruction was at that time dispensed in English.

If the description referred to in section 10 indicates that the attestation mentioned in the first paragraph cannot be produced, it shall be supported by proof of the steps undertaken to obtain the attestation, together with an attestation issued by a competent government body naming each school body or school attended by the father or mother and indicating that the major part of elementary instruction was at that time dispensed in English.

If the description referred to in section 10 indicates that the attestations referred to in the first and second paragraphs cannot be produced, it shall be supported by proof of the steps undertaken to obtain either of those attestations, together with proof of the father’s or mother’s place of residence at the time of elementary studies and an attestation issued by a competent authority confirming the existence of the school body or school attended at the time of the father’s or mother’s elementary studies and indicating that the major part of elementary instruction was at that time dispensed in English.

O.C. 1758-93, s. 11.

12. Where a father or mother requests that his or her eligibility to receive instruction in English be verified so that his or her child may be declared eligible to receive such instruction in accordance with the second paragraph of section 76 of the Charter, the documents required by sections 3 to 11 shall refer to his or her mother or father or, where applicable, brother or sister.

Such request, where it is made by a father or mother who attended school before 17 April 1982, shall be accompanied by,

(1) in the case of a request based on paragraph a of section 73 of the Charter, as it read before that date, the documents mentioned in the first paragraph of section 4 or, where applicable, in section 6;

(2) in the case of a request based on paragraph b of that section 73, the documents mentioned in section 4 or, where applicable, in section 6;

(3) in the case of a request based on paragraph c of that section 73, the documents mentioned in section 7; or

(4) in the case of a request based on paragraph d of that section 73, the documents mentioned in section 8.

A request made in accordance with this section shall also be accompanied by a birth certificate of the father or mother stating the names of his or her father and mother, or failing such birth certificate, an official document issued by a competent authority and establishing the date of birth, sex and filiation of the child.

O.C. 1758-93, s. 12.

13. A school body receiving a request for eligibility shall transmit it within a reasonable time, together with the required documents, to a person that the Minister of Education, Recreation and Sports has empowered to verify and decide on children’s eligibility for instruction in English under section 75 of the Charter.

O.C. 1758-93, s. 13.

14. Where a request for eligibility is incomplete because the required information or documents have not been provided, the designated person shall notify in writing the parent who made the request of the missing information or documents and the deadline by which they are to be provided. A copy of such notice shall be forwarded to the school body.

If the required information or documents are not provided within 90 days of the mailing date of the notice, the designated person shall make a decision on the basis of the incomplete request forwarded to him.

O.C. 1758-93, s. 14.

15. The designated person shall communicate in writing to the parent who submitted the request his decision regarding the child’s eligibility to receive instruction in English. Where the child is declared eligible, the designated person shall issue a certificate of eligibility.

The designated person shall inform the school body of his decision in writing.

O.C. 1758-93, s. 15.

16. (Omitted).

O.C. 1758-93, s. 16.

17. (Omitted).

O.C. 1758-93, s. 17.

Annotations

N.B. v. Québec (Éducation, Loisir et Sport), 2016 CanLII 39423 (QC TAQ) [judgment available in French only]

[OUR TRANSLATION]

[20] However, the legislator has set out a remedy for the inability to receive the attestation required by section 4 of the Regulation [Regulation Respecting Requests to Receive Instruction in English].

[21] Per section 10 of the Regulation, the applicant may, under these circumstances and in the absence of the attestation referred to in section 4, file a document listing the various steps she has taken to obtain this attestation. This document must attest to the school institutions or establishments where the child’s mother received English-language instruction. Supporting materials in the mother’s possession that pertain to her primary school studies, as well as her sworn statement attesting that she was educated primarily in English, must be attached to this document.

[…]

[24] The Tribunal heard testimonies from Ms. G.D. and from the applicant. Despite a submission that they can serve as the written statement referred to in section 10, these testimonies are insufficient for determining the percentage of French, versus English, taught in the school attended by Ms. G.D.

[25] Section 11 of the Regulation also describes what the applicant can do if she is unable to meet the conditions of section 10 of the Regulation. This evidence was not filed.

[26] It is true that the Regulation is stringent. This stringency stems from the legislator’s intent to protect the French language and make it the norm when it comes to the language of instruction. The teaching of English should remain the exception, which is why the legislator deemed it wise to specify what can constitute proof of English-language instruction received by a parent.

[27] These requirements are intended to avoid situations such as the present one, where the proof is nebulous. It is difficult for the Tribunal to conclude, from the evidence heard, that Ms. G.D. received a primarily English-language education.

[28] Ms. G.D. herself refers to bilingual schools.

[29] Even if the Tribunal were to agree that the applicant’s mother’s primary-level education was 50% in English, which the evidence does not reveal, this is insufficient to demonstrate a genuine commitment, on her mother’s part, to continuing her studies in the minority language.

[30] Further, the law does not require the applicant’s mother to have received a bilingual education or attended a bilingual educational institution, but her education had to be primarily in English. A little more than bilingual studies is needed.

Quebec – Other Language Laws

An Act Respecting Equal Access to Employment in Public Bodies, CQLR c. A-2.01

Division I – Object and Scope

1. This Act establishes a special framework to provide equal access to employment in order to remedy the situation experienced by persons belonging to certain groups discriminated against in employment, namely women, handicapped persons within the meaning of the Act to secure handicapped persons in the exercise of their rights with a view to achieving social, school and workplace integration (chapter E‐20.1), aboriginal peoples, persons who are members of visible minorities because of their race or the colour of their skin and persons whose mother tongue is neither French nor English and who belong to a group other than the aboriginal peoples group or the visible minorities group.

2000, c. 45, s. 1; 2004, c. 31, s. 58.

An Act Respecting Acupuncture, CQLR c. A-5.1

Division VII – Transitional and Final Provisions

40. The issue of permits to persons to whom the provisions of sections 30 to 35 apply remains subject to any other condition, formality and procedure for the issue of permits prescribed by the Professional Code (chapter C-26) and the Charter of the French language (chapter C-11), except that relating to the awarding of a diploma recognized as valid.

1994, c. 37, s. 40.

An Act Respecting the Agence Universitaire de la Francophonie, CQLR c. A-7.2

WHEREAS the Association des universités entièrement ou partiellement de langue française was incorporated on 31 October 1961 under Part III of the Companies Act (chapter C-38);

[…]

Whereas the mission of the Agence universitaire de la Francophonie is to develop a French-speaking academic international network in close partnership with the key actors concerned, namely, higher learning and research institutions, professors, researchers, students and contributing States and Governments;

Whereas the Agence universitaire de la Francophonie currently comprises over 400 higher learning institutions, grandes écoles and international conferences of deans and directors of higher learning institutions from all continents;

Whereas it is expedient to modify the legal regime applicable to the Agence universitaire de la Francophonie to enable it to better meet the needs deriving from its international character;

THE PARLIAMENT OF QUÉBEC ENACTS AS FOLLOWS:

1. The Agence universitaire de la Francophonie, also designated under the name “Association des universités partiellement ou entièrement de langue française - Université des réseaux d’expression française (AUPELF-UREF)”, a non-profit legal person incorporated on 31 October 1961 under Part III of the Companies Act (chapter C-38), shall be continued as a non-profit legal person under this Act.

2001, c. 40, s. 1.

2. The mission of the Agence is to develop a French-speaking academic international network in close partnership with the key actors concerned, namely, higher learning and research institutions, professors, researchers, students and contributing States and Governments.

2001, c. 40, s. 2.

An Act Respecting Prearranged Funeral Services and Sepultures, CQLR c. A-23.001

Chapter III – Protection of funds

Division I – Sums transferred in trust and deposits in trust

24. With each deposit or withdrawal made with the depositary, the seller must produce a list of the names and addresses of the buyers on whose behalf the deposit or withdrawal is made, indicating for each the contract number and the amount deposited or withdrawn on the buyer’s behalf.

On making the first deposit on behalf of a buyer pursuant to a contract, the seller must indicate in writing to the depositary the language in which the contract is drawn up.

1987, c. 65, s. 24.

Chapter VI – Proof, procedure and penalties

Division I – Proof and procedure

52. Every notice given by a seller under this Act must be drawn up in the language of the contract to which it refers.

1987, c. 65, s. 52.

53. Every notice given by a depositary under this Act must be drawn up in the language specified by the seller pursuant to the second paragraph of section 24.

1987, c. 65, s. 53.

Division III – Penal provisions

64. Every seller who

[…]

4) upon making a first deposit on behalf of a buyer pursuant to a contract, fails to specify to the depositary the language in which the contract is drawn up,

[…]

is guilty of an offence and is liable to a fine of not less than $500 nor more than $25 000.

1987, c. 65, s. 64; 1990, c. 4, s. 62; 1999, c. 40, s. 23.

70. Every depositary which

[…]

2) fails to transmit to a buyer in writing and in the language of the contract specified by the seller the information prescribed by section 36 within thirty days from the first deposit in trust made on his behalf, or

[…]

is guilty of an offence and is liable to a fine of not less than $500 nor more than $25 000.

1987, c. 65, s. 70; 1990, c. 4, s. 62.

Health Insurance Act, CQLR c. A-29

Division XI – Scholarships

89. No one shall be entitled to a scholarship if, in the opinion of the Minister :

(a) he is not domiciled in Québec;

(b) he does not have a working knowledge of the official language of Québec;

[…]

1974, c. 40, s. 18; 1984, c. 47, s. 18; 1990, c. 11, s. 58; 1997, c. 90, s. 14; 2002, c. 66, s. 25.

Division XII – Research scholarships

96. No one shall be entitled to a research scholarship if, in the opinion of the Québec Research Fund–Health established pursuant to the Act respecting the Ministère du Développement économique, de l’Innovation et de l’Exportation (chapter M-30.01),

(1) he is not domiciled in Québec;

(2) he does not have a working knowledge of the official language of Québec;

(3) he is not pursuing, for a university body or for an institution, research in connection with one of the health sciences.

1974, c. 40, s. 18; 1979, c. 1, s. 51; 1981, c. 22, s. 31; 1983, c. 23, s. 102; 1992, c. 21, s. 117, s. 375; 1999, c. 8, s. 21; 2003, c. 29, s. 140; 2006, c. 8, s. 31; 2011, c. 16, s. 244.

An Act Respecting Insurance, CQLR c. A-32

93.22. The name of a mutual insurance association shall not

(1) contravene the Charter of the French language (chapter C-11);

(2) include an expression which the law reserves for another person or prohibits the association from using;

(3) include an expression that evokes an immoral, obscene or offensive notion;

(4) incorrectly indicate the association’s juridical form or fail to indicate such form where so required by law;

(5) falsely suggest that the association is a non-profit group;

(6) falsely suggest that the association is, or is related to, a public authority determined by government regulation;

(7) falsely suggest that the association is related to another person or group of persons, particularly in the cases and in view of the criteria determined by government regulation;

(8) be identical to a name reserved for or used by another person or group of persons in Québec, particularly in view of the criteria determined by government regulation;

(9) be confusingly similar to a name reserved for or used by another person or group of persons in Québec, particularly in view of the criteria determined by government regulation; or

(10) be misleading in any other manner.

1985, c. 17, s. 6; 1993, c. 48, s. 122; 1996, c. 63, s. 83; 2009, c. 52, s. 509.

An Act Respecting Cree, Inuit and Naskapi Native Persons, CQLR c. A-33.1

Division V.1 – Entitlement and enrollment of Inuit beneficiaries

25.27. Community enrollment committees and the Nunavik Enrollment Review Committee set the rules for the conduct of their proceedings.

Before making a decision, however, community enrollment committees and the Review Committee must give an applicant and, if applicable, a person whose enrollment is being examined the opportunity to submit observations.

They must conduct their proceedings in Inuttitut and, on request by a committee member or a person mentioned in the second paragraph, in French or English.

2006, c. 28, s. 17.

An Act Respecting the Centre de la Francophonie des Amériques, CQLR c. C-7.1

Chapter II – Mission and functions

4. The Centre’s mission, to be achieved by reinforcing and enriching relations among francophones and francophiles in Québec, Canada and the Americas and by fostering the complementarity of their actions, is to contribute to the promotion and development of a francophone culture that will carry the French language into the future in a context of cultural diversity.

The Centre is to help develop the cultural awareness and self-fulfillment of francophones and francophiles and to encourage collaboration between individuals, groups and communities interested in francophone culture.

It is to encourage exchanges, partnerships and the development of francophone networks in order to support substantive, socially-relevant projects, and is to disseminate information on francophone-related subjects.

It may provide financial or technical support for activities or projects and it must take into account the policies of the government departments and bodies concerned by its activities.

2006, c. 57, s. 4.

Chapter III – Administration

20. The responsibilities of the board of directors include

[…]

(2) establishing the Centre’s annual activities program after consultation with the Minister responsible for Canadian Intergovernmental Affairs and for Francophones within Canada, the Minister of International Relations and Minister responsible for La Francophonie, the Minister of Culture and Communications and the Minister responsible for the Charter of the French language, as regards the mission of each;

[…]

2006, c. 57, s. 20.

Charter of Ville de Longueuil, CQLR c. C-11.3

Chapter II – Organization of the municipality

Division I – Division of territory

12. The borough of Greenfield Park is deemed to be recognized in accordance with section 29.1 of the Charter of the French language (chapter C‐11). The borough shall retain that recognition until, at its request, the recognition is withdrawn by the Government pursuant to section 29.1 of that Charter.

Officers or employees of the city who exercise their functions or perform work in connection with the powers of the borough referred to in the first paragraph or recognized under section 29.1 of the Charter of the French language are, for the purposes of sections 20 and 26 of that Charter, deemed to be officers or employees of that borough.

2000, c. 56, Sch. III, s. 12.

Charter of Ville de Montréal, CQLR c. C-11.4

Chapter I – Constitution of the municipality

1. A city is hereby constituted under the name “Ville de Montréal”.

Montréal is a French-speaking city.

Montréal is the metropolis of Québec and one of its key actors as regards economic development.

2000, c. 56, Sch. I, s. 1; 2008, c. 19, s. 2.

Chapter II – Organization of the municipality

Division I – Division of territory

11. The borough of Pierrefonds-Roxboro is deemed to be recognized in accordance with section 29.1 of the Charter of the French language (chapter C‐11).

The borough shall retain that recognition until, at its request, the recognition is withdrawn by the Government pursuant to section 29.1 of that Charter.

2000, c. 56, Sch. I, s. 11; 2001, c. 25, s. 240; O.C. 1213-2005, s. 2; 2006, c. 60, s. 6.

Schedule C

Chapter I – Organization of the city

Division III – Provisions concerning certain regulatory matters

192. The city becomes the owner of the streets, lanes, thoroughfares and places deemed public under section 191, and of the lots or parts of lots shown on the official cadastral plan as streets or lanes, upon completing the following formalities:

(1) the adoption of a resolution approving the description of the immovable;

(2) the publication of a notice to that effect, once a week for three consecutive weeks, in a French daily newspaper and in an English daily newspaper published in Montréal; and

(3) the registration in the land register of a notice to the same effect, signed by the clerk and stating that the formalities referred to in subparagraphs 1 and 2 of the first paragraph have been complied with.

That registration is made by deposit and the registrar is bound to receive the notice and enter a reference thereto in the land register.

The owner of the immovable expropriated under this section may claim an indemnity from the city. Where no agreement is reached, the indemnity shall be fixed by the Administrative Tribunal of Québec at the request of the owner or the city and sections 58 to 68 of the Expropriation Act (chapter E-24) apply, with the necessary modifications.

Charter of Human Rights and Freedoms, CQLR c. C-12

Part I – Human rights and freedoms

Chapter I – Fundamental freedoms and rights

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.

1975, c. 6, s. 3.

Annotations

Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 SCR 927, 1989 CanLII 87 (SCC)

[1] This appeal raises questions concerning the constitutionality, under ss. 91 and 92 of the Constitution Act, 1867, and ss. 2(b) and 7 of the Canadian Charter of Rights and Freedoms, of ss. 248 and 249 of the Quebec Consumer Protection Act, R.S.Q., c. P-40.1, respecting the prohibition of television advertising directed at persons under thirteen years of age.

[2] The appeal is by leave of this Court from the judgment of the Quebec Court of Appeal (Kaufman and Jacques JJ.A.; Vallerand J.A. dissenting) on September 18, 1986, 1986 CanLII 186 (QC CA), [1986] R.J.Q. 2441, 32 D.L.R. (4th) 641, 3 Q.A.C. 285, 26 C.R.R. 193, allowing an appeal from the judgment of Hugessen A.C.J. of the Superior Court for the District of Montreal on January 8, 1982, [1982] C.S. 96, which dismissed the respondent's action for a declaration that ss. 248 and 249 of the Consumer Protection Act were ultra vires the legislature of the province of Quebec and subsidiarily that they were inoperative as infringing the Quebec Charter of Human Rights and Freedoms, R.S.Q. c. C-12.

[…]

[12] The issues in the appeal in the order in which we propose to address them, to the extent necessary for the disposition of the appeal, may be summarized as follows:

[…]

3. Do ss. 248 and 249 [Consumer Protection Act] 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?

[…]

VI - Whether ss. 248 and 249 Limits Freedom of Expression as Guaranteed by the Canadian and Quebec Charters

A. The Ford and Devine Appeals

[39] Although the issue relating to freedom of expression in this appeal was argued together with the Ford and Devine appeals, it is important to emphasize that, unlike in the present case, the two latter cases involved government measures restricting one's choice of language. […]

The instant case concerns the regulation of advertising aimed at children and thus raises squarely the issues which were not treated in Ford. Whereas it was sufficient in Ford to reject the submission that the guarantee of freedom of expression does not extend to signs having a commercial message, this case requires a determination whether regulations aimed solely at commercial advertising limit that guarantee. This, in turn, requires an elaboration of the conclusion already reached in Ford that there is no sound basis on which to exclude commercial expression, as a category of expression, from the sphere of activity protected by s. 2(b) of the Canadian Charter and s. 3 of the Quebec Charter.

B. The First Step: Was the Plaintiff's Activity Within the Sphere of Conduct Protected by Freedom of Expression?

[40] Does advertising aimed at children fall within the scope of freedom of expression? This question must be put even before deciding whether there has been a limitation of the guarantee. Clearly, not all activity is protected by freedom of expression, and governmental action restricting this form of advertising only limits the guarantee if the activity in issue was protected in the first place. Thus, for example, in Reference Re Public Service Employee Relations Act (Alta.), [1987] 1 SCR 313; PSAC v. Canada, [1987] 1 SCR 424; and RWDSU v. Saskatchewan, [1987] 1 SCR 460, the majority of the Court found that freedom of association did not include the right to strike. The activity itself was not within the sphere protected by s. 2(d); therefore the government action in restricting it was not contrary to the Charter. The same procedure must be followed with respect to an analysis of freedom of expression; the first step to be taken in an inquiry of this kind is to discover whether the activity which the plaintiff wishes to pursue may properly be characterized as falling within "freedom of expression". If the activity is not within s. 2(b), the government action obviously cannot be challenged under that section.

[41] The necessity of this first step has been described, with reference to the narrower concept of "freedom of speech", by Frederick Schauer in his work entitled Free Speech: A Philosophical Enquiry (Cambridge, 1982) at p. 91:

We are attempting to identify those things that one is free (or at least more free) to do when a Free Speech Principle is accepted. What activities justify an appeal to the concept of freedom of speech? These activities are clearly something less than the totality of human conduct and ... something more than merely moving one's tongue, mouth and vocal chords to make linguistic noises.

"Expression" has both a content and a form, and the two can be inextricably connected. Activity is expressive if it attempts to convey meaning. That meaning is its content. Freedom of expression was entrenched in our Constitution and is guaranteed in the Quebec Charter so as to ensure that everyone can manifest their thoughts, opinions, beliefs, indeed all expressions of the heart and mind, however unpopular, distasteful or contrary to the mainstream. Such protection is, in the words of both the Canadian and Quebec Charters, "fundamental" because in a free, pluralistic and democratic society we prize a diversity of ideas and opinions for their inherent value both to the community and to the individual. Free expression was for Cardozo J. of the United States Supreme Court "the matrix, the indispensable condition of nearly every other form of freedom" (Palko v. Connecticut, 302 U.S. 319 (1937), at p. 327); for Rand J. of the Supreme Court of Canada, it was "little less vital to man's mind and spirit than breathing is to his physical existence" (Switzman v. Elbling, [1957] SCR 285, at p. 306). And as the European Court stated in the Handyside case, Eur. Court H. R., decision of 29 April 1976, Series A No. 24, at p. 23, freedom of expression:

... is applicable not only to "information" or "ideas" that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population. Such are the demands of that pluralism, tolerance and broad-mindedness without which there is no "democratic society".

We cannot, then, exclude human activity from the scope of guaranteed free expression on the basis of the content or meaning being conveyed. Indeed, if the activity conveys or attempts to convey a meaning, it has expressive content and prima facie falls within the scope of the guarantee. Of course, while most human activity combines expressive and physical elements, some human activity is purely physical and does not convey or attempt to convey meaning. It might be difficult to characterize certain day-to-day tasks, like parking a car, as having expressive content. To bring such activity within the protected sphere, the plaintiff would have to show that it was performed to convey a meaning. For example, an unmarried person might, as part of a public protest, park in a zone reserved for spouses of government employees in order to express dissatisfaction or outrage at the chosen method of allocating a limited resource. If that person could demonstrate that his activity did in fact have expressive content, he would, at this stage, be within the protected sphere and the s. 2(b) challenge would proceed.

[42] The content of expression can be conveyed through an infinite variety of forms of expression: for example, the written or spoken word, the arts, and even physical gestures or acts. While the guarantee of free expression protects all content of expression, certainly violence as a form of expression receives no such protection. It is not necessary here to delineate precisely when and on what basis a form of expression chosen to convey a meaning falls outside the sphere of the guarantee. But it is clear, for example, that a murderer or rapist cannot invoke freedom of expression in justification of the form of expression he has chosen. As McIntyre J., writing for the majority in RWDSU v. Dolphin Delivery Ltd., [1986] 2 SCR 573, observed in the course of discussing whether picketing fell within the scope of s. 2(b), at p. 588:

Action on the part of the picketers will, of course, always accompany the expression, but not every action on the part of the picketers will be such as to alter the nature of the whole transaction and remove it from Charter protection for freedom of expression. That freedom, of course, would not extend to protect threats of violence or acts of violence.

Indeed, freedom of expression ensures that we can convey our thoughts and feelings in non-violent ways without fear of censure.

[43] The broad, inclusive approach to the protected sphere of free expression here outlined is consonant with that suggested by some leading theorists. Thomas Emerson, in his article entitled "Toward a General Theory of the First Amendment" (1963), 72 Yale L.J. 877, notes (at p. 886) that:

... the theory of freedom of expression involves more than a technique for arriving at better social judgments through democratic procedures. It comprehends a vision of society, a faith and a whole way of life. The theory grew out of an age that was awakened and invigorated by the idea of a new society in which man's mind was free, his fate determined by his own powers of reason, and his prospects of creating a rational and enlightened civilization virtually unlimited. It is put forward as a prescription for attaining a creative, progressive, exciting and intellectually robust community. It contemplates a mode of life that, through encouraging toleration, skepticism, reason and initiative, will allow man to realize his full potentialities. It spurns the alternative of a society that is tyrannical, conformist, irrational and stagnant.

[44] D.F.B. Tucker in his book Law, Liberalism and Free Speech (1985) describes what he calls a "deontological approach" to freedom of expression as one in which "the protected sphere of liberty is delineated by interpreting an understanding of the democratic commitment" (p. 35). It is upon precisely this enterprise that we have embarked.

[45] Thus, the first question remains: Does the advertising aimed at children fall within the scope of freedom of expression? Surely it aims to convey a meaning, and cannot be excluded as having no expressive content. Nor is there any basis for excluding the form of expression chosen from the sphere of protected activity. As we stated in Ford, supra, at pp. 766-67:

Given the earlier pronouncements of this Court to the effect that the rights and freedoms guaranteed in the Canadian Charter should be given a large and liberal interpretation, there is no sound basis on which commercial expression can be excluded from the protection of s. 2(b) of the Charter.

Consequently, we must proceed to the second step of the inquiry and ask whether the purpose or effect of the government action in question was to restrict freedom of expression.

[46] It bears repeating that in Ford, the discussion of commercial expression ended at this first stage. The Court had already found that the aim of ss. 58 and 69 of the Charter of the French Language was to prohibit the use of one's language of choice. The centrality of choice of language to freedom of expression transcends any significance that the context in which the expression is intended to be used might have. It was therefore unnecessary in that case to inquire further whether the restriction of commercial expression limited freedom of expression.

C. The Second Step: Was the Purpose or Effect of the Government Action to Restrict Freedom of Expression?

[47] Having found that the plaintiff's activity does fall within the scope of guaranteed free expression, it must next be determined whether the purpose or effect of the impugned governmental action was to control attempts to convey meaning through that activity. The importance of focussing at this stage on the purpose and effect of the legislation is nowhere more clearly stated than in R. v. Big M Drug Mart Ltd., [1985] 1 SCR 295, at pp. 331-32 where Dickson J. (as he then was), speaking for the majority, observed:

In my view, both purpose and effect are relevant in determining constitutionality; either an unconstitutional purpose or an unconstitutional effect can invalidate legislation. All legislation is animated by an object the legislature intends to achieve. This object is realized through the impact produced by the operation and application of the legislation. Purpose and effect respectively, in the sense of the legislation's object and its ultimate impact, are clearly linked, if not indivisible. Intended and actual effects have often been looked to for guidance in assessing the legislation's object and thus, its validity.

Moreover, consideration of the object of legislation is vital if rights are to be fully protected. The assessment by the courts of legislative purpose focuses scrutiny upon the aims and objectives of the legislature and ensures they are consonant with the guarantees enshrined in the Charter. The declaration that certain objects lie outside the legislature's power checks governmental action at the first stage of unconstitutional conduct. Further, it will provide more ready and more vigorous protection of constitutional rights by obviating the individual litigant's need to prove effects violative of Charter rights. It will also allow courts to dispose of cases where the object is clearly improper, without inquiring into the legislation's actual impact.

Dickson J. went on to specify how this inquiry into purpose and effects should be carried out (at p. 334):

In short, I agree with the respondent that the legislation's purpose is the initial test of constitutional validity and its effects are to be considered when the law under review has passed or, at least, has purportedly passed the purpose test. If the legislation fails the purpose test, there is no need to consider further its effects, since it has already been demonstrated to be invalid. Thus, if a law with a valid purpose interferes by its impact, with rights or freedoms, a litigant could still argue the effects of the legislation as a means to defeat its applicability and possibly its validity. In short, the effects test will only be necessary to defeat legislation with a valid purpose; effects can never be relied upon to save legislation with an invalid purpose.

If the government's purpose, then, was to restrict attempts to convey a meaning, there has been a limitation by law of s. 2(b) and a s. 1 analysis is required to determine whether the law is inconsistent with the provisions of the Constitution. If, however, this was not the government's purpose, the court must move on to an analysis of the effects of the government action.

[48] When applying the purpose test to the guarantee of free expression, one must beware of drifting to either of two extremes. On the one hand, the greatest part of human activity has an expressive element and so one might find, on an objective test that an aspect of the government's purpose is virtually always to restrict expression. On the other hand, the government can almost always claim that its subjective purpose was to address some real or purported social need, not to restrict expression. To avoid both extremes, the government's purpose must be assessed from the standpoint of the guarantee in question. Just as the division of powers jurisprudence of this Court measures the purpose of government action against the ambit of the heads of power established under the Constitution Act, 1867, so too, in cases involving the rights and freedoms guaranteed by the Canadian Charter, the purpose of government action must be measured against the ambit of the relevant guarantee. It is important, of course, to heed Dickson J.'s warning against a "theory of shifting purpose" (Big M Drug Mart, supra, at p. 335): "Purpose is a function of the intent of those who drafted and enacted the legislation at the time, and not of any shifting variable." This is not to say that the degree to which a purpose remains or becomes pressing and substantial cannot change over time. In Big M Drug Mart, Dickson J.'s principal concern was to avoid characterizing purposes in a way that shifted over time. But it is equally true that the government cannot have had one purpose as concerns the division of powers, a different purpose as concerns the guaranteed right or freedom, and a different purpose again as concerns reasonable and justified limits to that guarantee. Nevertheless, the same purpose can be assessed from different standpoints when interpreting the division of powers, limitation of a guarantee, or reasonable limits to that guarantee.

[49] If the government's purpose is to restrict the content of expression by singling out particular meanings that are not to be conveyed, it necessarily limits the guarantee of free expression. If the government's purpose is to restrict a form of expression in order to control access by others to the meaning being conveyed or to control the ability of the one conveying the meaning to do so, it also limits the guarantee. On the other hand, where the government aims to control only the physical consequences of certain human activity, regardless of the meaning being conveyed, its purpose is not to control expression. Archibald Cox has described the distinction as follows (Freedom of Expression (1981), at pp. 59-60):

The bold line ... between restrictions upon publication and regulation of the time, place or manner of expression tied to content, on the one hand, and regulation of time, place, or manner of expression regardless of content, on the other hand, reflects the difference between the state's usually impermissible effort to suppress "harmful" information, ideas, or emotions and the state's often justifiable desire to secure other interests against interference from the noise and the physical intrusions that accompany speech, regardless of the information, ideas, or emotions expressed.

Thus, for example, a rule against handing out pamphlets is a restriction on a manner of expression and is "tied to content", even if that restriction purports to control litter. The rule aims to control access by others to a meaning being conveyed as well as to control the ability of the pamphleteer to convey a meaning. To restrict this form of expression, handing out pamphlets, entails restricting its content. By contrast, a rule against littering is not a restriction "tied to content". It aims to control the physical consequences of certain conduct regardless of whether that conduct attempts to convey meaning. To restrict littering as a "manner of expression" need not lead inexorably to restricting a content. Of course, rules can be framed to appear neutral as to content even if their true purpose is to control attempts to convey a meaning. For example, in Saumur v. City of Quebec, [1953] 2 SCR 299, a municipal by-law forbidding distribution of pamphlets without prior authorization from the Chief of Police was a colourable attempt to restrict expression.

[50] If the government is to assert successfully that its purpose was to control a harmful consequence of the particular conduct in question, it must not have aimed to avoid, in Thomas Scanlon's words ("A Theory of Freedom of Expression", in Dworkin, ed., The Philosophy of Law (1977), at p. 161):

a) harms to certain individuals which consist in their coming to have false beliefs as a result of those acts of expression; b) harmful consequences of acts performed as a result of those acts of expression, where the connection between the acts of expression and the subsequent harmful acts consists merely in the fact that the act of expression led the agents to believe (or increased their tendency to believe) these acts to be worth performing.

In each of Scanlon's two categories, the government's purpose is to regulate thoughts, opinions, beliefs or particular meanings. That is the mischief in view. On the other hand, where the harm caused by the expression in issue is direct, without the intervening element of thought, opinion, belief, or a particular meaning, the regulation does aim at a harmful physical consequence, not the content or form of expression.

[51] In sum, the characterization of government purpose must proceed from the standpoint of the guarantee in issue. With regard to freedom of expression, if the government has aimed to control attempts to convey a meaning either by directly restricting the content of expression or by restricting a form of expression tied to content, its purpose trenches upon the guarantee. Where, on the other hand, it aims only to control the physical consequences of particular conduct, its purpose does not trench upon the guarantee. In determining whether the government's purpose aims simply at harmful physical consequences, the question becomes: does the mischief consist in the meaning of the activity or the purported influence that meaning has on the behaviour of others, or does it consist, rather, only in the direct physical result of the activity.

[52] Even if the government's purpose was not to control or restrict attempts to convey a meaning, the Court must still decide whether the effect of the government action was to restrict the plaintiff's free expression. Here, the burden is on the plaintiff to demonstrate that such an effect occurred. In order so to demonstrate, a plaintiff must state her claim with reference to the principles and values underlying the freedom.

[53] We have already discussed the nature of the principles and values underlying the vigilant protection of free expression in a society such as ours. They were also discussed by the Court in Ford (at pp. 765-67), and can be summarized as follows: (1) seeking and attaining the truth is an inherently good activity; (2) participation in social and political decision-making is to be fostered and encouraged; and (3) the diversity in forms of individual self-fulfillment and human flourishing ought to be cultivated in an essentially tolerant, indeed welcoming, environment not only for the sake of those who convey a meaning, but also for the sake of those to whom it is conveyed. In showing that the effect of the government's action was to restrict her free expression, a plaintiff must demonstrate that her activity promotes at least one of these principles. It is not enough that shouting, for example, has an expressive element. If the plaintiff challenges the effect of government action to control noise, presuming that action to have a purpose neutral as to expression, she must show that her aim was to convey a meaning reflective of the principles underlying freedom of expression. The precise and complete articulation of what kinds of activity promote these principles is, of course, a matter for judicial appreciation to be developed on a case by case basis. But the plaintiff must at least identify the meaning being conveyed and how it relates to the pursuit of truth, participation in the community, or individual self-fulfillment and human flourishing.

[…]

D. Summary and Conclusion

[55] When faced with an alleged violation of the guarantee of freedom of expression, the first step in the analysis is to determine whether the plaintiff's activity falls within the sphere of conduct protected by the guarantee. Activity which (1) does not convey or attempt to convey a meaning, and thus has no content of expression or (2) which conveys a meaning but through a violent form of expression, is not within the protected sphere of conduct. If the activity falls within the protected sphere of conduct, the second step in the analysis is to determine whether the purpose or effect of the government action in issue was to restrict freedom of expression. If the government has aimed to control attempts to convey a meaning either by directly restricting the content of expression or by restricting a form of expression tied to content, its purpose trenches upon the guarantee. Where, on the other hand, it aims only to control the physical consequences of particular conduct, its purpose does not trench upon the guarantee. In determining whether the government's purpose aims simply at harmful physical consequences, the question becomes: does the mischief consist in the meaning of the activity or the purported influence that meaning has on the behaviour of others, or does it consist, rather, only in the direct physical result of the activity. If the government's purpose was not to restrict free expression, the plaintiff can still claim that the effect of the government's action was to restrict her expression. To make this claim, the plaintiff must at least identify the meaning being conveyed and how it relates to the pursuit of truth, participation in the community, or individual self-fulfillment and human flourishing.

[56] In the instant case, the plaintiff's activity is not excluded from the sphere of conduct protected by freedom of expression. The government's purpose in enacting ss. 248 and 249 of the Consumer Protection Act and in promulgating ss. 87 to 91 of the Regulation respecting the application of the Consumer Protection Act was to prohibit particular content of expression in the name of protecting children. These provisions therefore constitute limitations to s. 2(b) of the Canadian Charter and s. 3 of the Quebec Charter. They fall to be justified under s. 1 of the Canadian Charter and s. 9.1 of the Quebec Charter.

Ford v. Quebec (Attorney General), [1988] 2 SCR 712, 1988 CanLII 19 (SCC)

[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.

[…]

[21] The issues in the appeal, as reflected in the above constitutional questions, the reasons for judgment of the Superior Court and the Court of Appeal and the submissions in this Court, may be summarized as follows:

[…]

2. What are the dates from which s. 3 of the Quebec Charter of Human Rights and Freedoms took precedence, in case of conflict, over ss. 58 and 69 of the Charter of the French Language?

3. Does the freedom of expression guaranteed by s. 2(b) of the Canadian Charter and by s. 3 of the Quebec Charter include the freedom to express oneself in the language of one's choice?

4. Does the freedom of expression guaranteed by s. 2(b) of the Canadian Charter and s. 3 of the Quebec Charter extend to commercial expression?

[…]

VI – The Dates from Which s. 3 of the Quebec Charter of Human Rights and Freedoms Took Precedence, in Case of Conflict, over ss. 58 and 69 of the Charter of the French Language

[37] Section 3 of the Quebec Charter of Human Rights and Freedoms is applicable to ss. 58 and 69 of the Charter of the French Language in this appeal because by operation of s. 52 of the Quebec Charter, as amended, s. 3 took precedence over ss. 58 and 69 not later than January 1, 1986. As indicated above, however, there was a difference of opinion in the Superior Court and the Court of Appeal as to the date from which s. 3 took precedence over s. 58, the Superior Court holding that it was from February 1, 1984, the Court of Appeal holding that it was from January 1, 1986. Although the resolution of this question is not strictly necessary for the disposition of the appeal we were invited by counsel to express an opinion on it because of its possible importance in other cases. We propose to do so for reasons similar to those concerning the question of the validity of the standard override provision as enacted by An Act respecting the Constitution Act, 1982.

[38] 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, all of which are quoted in Part II of these reasons, 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 difference of opinion in the Superior Court and the Court of Appeal was as to whether s. 58 of the Charter of the French Language, as replaced by s. 12 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, was an Act "subsequent to" October 1, 1983 within the meaning of s. 34 of the amending Act or an Act preceding that date. In its original form s. 58 of the Charter of the French Language was enacted in 1977 by S.Q. 1977, c. 5 and came into force by operation of s. 209 of the Charter on July 3, 1978. It read as follows: "58. Except as may be provided under this act or the regulations of the Office de la langue française, signs and posters and commercial advertising shall be solely in the official language." As replaced by s. 12 of An Act to amend the Charter of the French Language, s. 58 now provides:

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.

The difference of opinion on this issue turned on whether the word "subsequent" in s. 34 of the amending Act meant subsequent in time or subsequent in the sense of being "new law" as opposed to a mere consolidation. Boudreault J., who held that s. 3 of the Quebec Charter of Human Rights and Freedoms took precedence over s. 58 of the Charter of the French Language, as amended, from February 1, 1984 (and this was a necessary conclusion in order for him to be able to apply s. 3 at the time of his judgment), was of the view that "subsequent" meant subsequent in time, that it referred to the chronological order of legislation and not to the nature of its substantive effect on existing law. Bisson J.A. in the Court of Appeal was of the view that s. 58 as replaced by s. 12 of the amending Act was not an enactment subsequent to October 1, 1983 within the meaning of s. 34 of the amending Act because it was not new law but in the nature of a consolidation. He applied the rule of statutory construction embodied in s. 36(f) of the federal Interpretation Act, R.S.C. 1970, c. I-23, and stated as a general rule of construction by Professor Côté in his treatise, The Interpretation of Legislation in Canada, op. cit., to the effect that if a statutory provision is replaced by one that is identical in substance the provision which replaces it is equivalent to a consolidation with the result that it is deemed not to be new law and must be interpreted as a declaration of the former law, which is considered, for purposes of construction, to have remained in force. The theory underlying the corresponding s. 13 of the Quebec Interpretation Act, R.S.Q., c. I-16, would appear to be somewhat different: everything done under the replaced provision is deemed to have been done and to continue under the "new" provision. This raises a question as to whether the rule of construction stated by Professor Côté, based as it is in part on the federal provision, applies to the construction of Quebec statutes. It is not necessary, however, to express an opinion on this question because as Boudreault J. held in the Superior Court, the word "subsequent" in s. 34 of An Act to amend the Charter of the French Language refers to an enactment that is subsequent in time to October 1, 1983, regardless of its effect on existing legislation, with the result that s. 3 of the Quebec Charter of Human Rights and Freedoms was applicable to s. 58 of the Charter of the French Language, as amended, from February 1, 1984.

Whether the Freedom of Expression Guaranteed by s. 2(b) of the Canadian Charter of Rights and Freedoms and 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

[40] The conclusion of the Superior Court and the Court of Appeal on this issue is correct. 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, as the preamble of the Charter of the French Language itself indicates, a means by which a people may express its cultural identity. It is also the means by which the individual expresses his or her personal identity and sense of individuality. That the concept of "expression" in s. 2(b) of the Canadian Charter and s. 3 of the Quebec Charter goes beyond mere content is indicated by the specific protection accorded to "freedom of thought, belief [and] opinion" in s. 2 and to "freedom of conscience" and "freedom of opinion" in s. 3. That suggests that "freedom of expression" is intended to extend to more than the content of expression in its narrow sense.

[41] The Attorney General of Quebec made several submissions against the conclusion reached by the Superior Court and the Court of Appeal on this issue, the most important of which may be summarized as follows: (a) in determining the meaning of freedom of expression the Court should apply the distinction between the message and the medium which must have been known to the framers of the Canadian and Quebec Charters; (b) the express provision for the guarantee of language rights in ss. 16 to 23 of the Canadian Charter indicate that it was not intended that a language freedom should result incidentally from the guarantee of freedom of expression in s. 2(b); (c) the recognition of a freedom to express oneself in the language of one's choice under s. 2(b) of the Canadian Charter and s. 3 of the Quebec Charter would undermine the special and limited constitutional position of the specific guarantees of language rights in s. 133 of the Constitution Act, 1867 and ss. 16 to 23 of the Canadian Charter that was emphasized by the Court in MacDonald v. City of Montreal, 1986 CanLII 65 (SCC), [1986] 1 SCR 460, and Société des Acadiens du Nouveau-Brunswick Inc. v. Association of Parents for Fairness in Education, 1986 CanLII 66 (SCC), [1986] 1 SCR 549; and (d) the recognition that freedom of expression includes the freedom to express oneself in the language of one's choice would be contrary to the views expressed on this issue by the European Commission of Human Rights and the European Court of Human Rights.

[42] The distinction between the message and the medium was applied by Dugas J. of the Superior Court in Devine v. Procureur général du Québec, supra, in holding that freedom of expression does not include freedom to express oneself in the language of one's choice. It has already been indicated why that distinction is inappropriate as applied to language as a means of expression because of the intimate relationship between language and meaning. As one of the authorities on language quoted by the appellant Singer in the Devine appeal, J. Fishman, The Sociology of Language (1972), at p. 4, puts it: "... language is not merely a means of interpersonal communication and influence. It is not merely a carrier of content, whether latent or manifest. Language itself is content, a reference for loyalties and animosities, an indicator of social statuses and personal relationships, a marker of situations and topics as well as of the societal goals and the large-scale value-laden arenas of interaction that typify every speech community." As has been noted this quality or characteristic of language is acknowledged by the Charter of the French Language itself where, in the first paragraph of its preamble, it states: "Whereas the French language, the distinctive language of a people that is in the majority French-speaking, is the instrument by which that people has articulated its identity."

[43] The second and third of the submissions of the Attorney General of Quebec which have been summarized above, with reference to the implications for this issue of 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 of Rights and Freedoms, are closely related and may be addressed together. These special guarantees of language rights do not, by implication, preclude a construction of freedom of expression that includes the freedom to express oneself in the language of one's choice. A general freedom to express oneself in the language of one's choice and the special guarantees of language rights in certain areas of governmental activity or jurisdiction -- the legislature and administration, the courts and education -- are quite different things. The latter have, as this Court has indicated in MacDonald, supra, and Société des Acadiens, supra, their own special historical, political and constitutional basis. The central unifying feature of all of the language rights given explicit recognition in the Constitution of Canada is that they pertain to governmental institutions and for the most part they oblige the government to provide for, or at least tolerate, the use of both official languages. In this sense they are more akin to rights, properly understood, than freedoms. They grant entitlement to a specific benefit from the government or in relation to one's dealing with the government. Correspondingly, the government is obliged to provide certain services or benefits in both languages or at least permit use of either language by persons conducting certain affairs with the government. They do not ensure, as does a guaranteed freedom, that within a given broad range of private conduct, an individual will be free to choose his or her own course of activity. The language rights in the Constitution impose obligations on government and governmental institutions that are in the words of Beetz J. in MacDonald, a "precise scheme", providing specific opportunities to use English or French, or to receive services in English or French, in concrete, readily ascertainable and limited circumstances. In contrast, what the respondents seek in this case is a freedom as that term was explained by Dickson J. (as he then was) in R. v. Big M Drug Mart Ltd., 1985 CanLII 69 (SCC), [1985] 1 SCR 295, at p. 336: "Freedom can primarily be characterized by the absence of coercion or constraint. If a person is compelled by the state or the will of another to a course of action or inaction which he would not otherwise have chosen, he is not acting of his own volition and he cannot be said to be truly free. One of the major purposes of the Charter is to protect, within reason, from compulsion or restraint." The respondents seek to be free of the state imposed requirement that their commercial signs and advertising be in French only, and seek the freedom, in the entirely private or non-governmental realm of commercial activity, to display signs and advertising in the language of their choice as well as that of French. Manifestly the respondents are not seeking to use the language of their choice in any form of direct relations with any branch of government and are not seeking to oblige government to provide them any services or other benefits in the language of their choice. In this sense the respondents are asserting a freedom, the freedom to express oneself in the language of one's choice in an area of non-governmental activity, as opposed to a language right of the kind guaranteed in the Constitution. 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 special guarantees of official language rights in areas of governmental jurisdiction or responsibility. The legal structure, function and obligations of government institutions with respect to the English and French languages are in no way affected by the recognition that freedom of expression includes the freedom to express oneself in the language of one's choice in areas outside of those for which the special guarantees of language have been provided.

[44] The decisions of the European Commission of Human Rights and the European Court of Human Rights on which the Attorney General of Quebec relied are all distinguishable on the same basis, apart from the fact that, as Bisson J.A. observed in the Court of Appeal, they arose in an entirely different constitutional context. They all involved claims to language rights in relations with government that would have imposed some obligation on government. The decisions of the Commission in their chronological order are as follows: 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; and X. v. Ireland (1970), 13 Yearbook of the European Convention on Human Rights 792. The decision of the Court is the 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, which arose out of the decision of the Commission in Alsemberg and related applications. In Alsemberg and the case decided by the Court arising out of it, the claim was to the right to public education in a particular language. In Inhabitants of Leeuw-St. Pierre, X. v. Belgium and X. v. Ireland, the language right claimed was the right to receive certain administrative documents in a particular language. In the four cases decided by the Commission the applicants invoked Articles 9 and 10 of the European Convention on Human Rights in support of their claims. In the case decided by the Court, Articles 9 and 10 were not in issue because the applications had been ruled by the Commission as inadmissible in respect of those provisions. Article 9 provides for "the right to freedom of thought, conscience and religion" and Article 10 provides for "the right to freedom of expression". Reference was also made in the decisions to Articles 5(2), 6(3)(a) and (e) of the Convention. Article 5(2) provides that everyone who is arrested shall be informed promptly "in a language which he understands" of the reasons for his arrest and of any charge against him. Article 6(3)(a) provides that everyone charged with a criminal offence has the right to be informed promptly "in a language which he understands" and in detail of the nature and cause of the accusation against him. Article 6(3)(e) provides that everyone charged with a criminal offence has the right "to have the free assistance of an interpreter if he cannot understand or speak the language used in court". What the Commission decided in effect in these cases, and what the Court impliedly agreed with is that language rights of the kind claimed, involving an obligation on the part of government, could not be based on the freedom of thought and freedom of expression provided for in Articles 9 and 10 but had to be specially provided for, as are the language rights of this character in Articles 5(2), 6(3)(a) and (e). This distinction is clearly put in Inhabitants of Leeuw-St. Pierre, where the Commission applied the reasoning in the following quotation from one of its earlier decisions involving a claim to have "administrative formalities" completed in a particular language (at p. 348):

These considerations are obviously applicable without restriction to the applicants' grievances regarding the use of languages in administration. It is clear that one has to distort the usual meaning of the passages [Articles 9 and 10 of the Convention] if one is to transform the right to express one's thought freely in the language of one's choice into a right to complete, and insist on the completion of, all administrative formalities in that language.

The applicants' argument would only be acceptable in so far as it could be based on texts similar to Articles 5(2) and 6(3)(a) and (e) of the Convention. To admit that it might have some foundation in Articles 9 and 10 would be tantamount to attributing to those two Articles such a wide scope that the specific guarantees given in Articles 5 and 6 would have to be considered superfluous.

This reasoning, assuming it to have some persuasive authority, is entirely consistent with the distinction drawn and the conclusion reached above that 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.

Whether the Guarantee of Freedom of Expression Extends to Commercial Expression

[45] In argument there arose a question whether the above issue is an issue in this appeal. The Attorney General of Quebec contended that if the guarantee of freedom of expression included the freedom to express oneself in the language of one's choice the respondents must still show that the guarantee extends to commercial expression. The respondents disputed this on the ground that the challenged provisions are directed to the language used and not to regulation of the substantive content of the expression. At the same time they made alternative submissions that the guarantee extended to commercial expression. The Attorney General of Quebec is correct on this issue: there cannot be a guaranteed freedom to express oneself in the language of one's choice in respect of a form or kind of expression that is not covered by the guarantee of freedom of expression. The question whether the guarantee of freedom of expression in s. 2(b) of the Canadian Charter and s. 3 of the Quebec Charter extends to the kind of expression contemplated by ss. 58 and 69 of the Charter of the French Language, which for convenience is referred to as commercial expression, is therefore an issue in this appeal. The submissions that were made on the question of commercial expression in the Devine and Irwin Toy appeals will be considered in determining that issue in this appeal.

[46] It was not disputed that the public signs and posters, the commercial advertising, and the firm name referred to in ss. 58 and 69 of the Charter of the French Language are forms of expression, and it was also assumed or accepted in argument that the expression contemplated by these provisions may be conveniently characterized or referred to as commercial expression. Sections 58 and 69 appear in Chapter VII of the Charter of the French Language, entitled "The Language of Commerce and Business". It must be kept in mind, however, that while the words "commercial expression" are a convenient reference to the kind of expression contemplated by the provisions in issue, they do not have any particular meaning or significance in Canadian constitutional law, unlike the corresponding expression "commercial speech", which in the United States has been recognized as a particular category of speech entitled to First Amendment protection of a more limited character than that enjoyed by other kinds of speech. The issue in the appeal is not whether the guarantee of freedom of expression in s. 2(b) of the Canadian Charter and s. 3 of the Quebec Charter should be construed as extending to particular categories of expression, giving rise to difficult definitional problems, but whether there is any reason why the guarantee should not extend to a particular kind of expression, in this case the expression contemplated by ss. 58 and 69 of the Charter of the French Language. Because, however, the American experience with the First Amendment protection of "commercial speech" was invoked in argument, as it has been in other cases, both for and against the recognition in Canada that the guarantee of freedom of expression extends to the kinds of expression that may be described as commercial expression, it is convenient to make brief reference to it at this point.

[…]

[50] In the case at bar Boudreault J. in the Superior Court held that the guarantee of freedom of expression in s. 3 of the Quebec Charter extended to commercial expression. He relied particularly on the reasoning in the American decisions, quoting at length from the judgment of Blackmun J. in Virginia Pharmacy for the rationale underlying the protection of commercial speech in the United States. He emphasized, as does that case, that it is not only the speaker but the listener who has an interest in freedom of expression. In the Court of Appeal, Bisson J.A. applied the judgment of the majority of the Court on this issue in Irwin Toy Ltd. v. Procureur général du Québec, [1986] R.J.Q. 2441, and quoted from the opinions of Jacques J.A. and Vallerand J.A. in that case. In Irwin Toy, Jacques J.A. held that there was no basis on the face of s. 2(b) of the Canadian Charter for distinguishing, in respect of the guarantee of freedom of expression, between different kinds of expression, whether they be of a political, artistic, cultural or other nature. He held that commercial expression was as much entitled to protection as other kinds of expression because of the important role played by it in assisting persons to make informed economic choices. He added, however, that commercial expression might be subject to reasonable limits under s. 1 of the Canadian Charter of a kind that would not be reasonable in the case of political expression. While Jacques J.A. did not refer explicitly to the American jurisprudence on commercial speech, his general approach to the question of commercial expression would appear to contemplate a result similar to that reached in the American cases: the constitutional protection of freedom of commercial expression but to a lesser degree than that accorded to political expression. Vallerand J.A. expressed a similar view, indicating his agreement with the rationale for the protection of commercial expression reflected in the American cases: the individual and societal interest in the free flow of commercial information as indispensable to informed economic decisions.

[…]

[54] It is apparent to this Court that the guarantee of freedom of expression in s. 2(b) of the Canadian Charter and s. 3 of the Quebec Charter cannot be confined to political expression, important as that form of expression is in a free and democratic society. The pre-Charter jurisprudence emphasized the importance of political expression because it was a challenge to that form of expression that most often arose under the division of powers and the "implied bill of rights", where freedom of political expression could be related to the maintenance and operation of the institutions of democratic government. But political expression is only one form of the great range of expression that is deserving of constitutional protection because it serves individual and societal values in a free and democratic society.

[…]

[57] While these attempts to identify and define the values which justify the constitutional protection of freedom of expression are helpful in emphasizing the most important of them, they tend to be formulated in a philosophical context which fuses the separate questions of whether a particular form or act of expression is within the ambit of the interests protected by the value of freedom of expression and the question whether that form or act of expression, in the final analysis, deserves protection from interference under the structure of the Canadian Charter and the Quebec Charter. These are two distinct questions and call for two distinct analytical processes. The first, at least for the Canadian Charter, is to be determined by the purposive approach to interpretation set out by this Court in Hunter v. Southam Inc., 1984 CanLII 33 (SCC), [1984] 2 SCR 145, and Big M Drug Mart Ltd., supra. The second, the question of the limitation on the protected values, is to be determined under s. 1 of the Charter as interpreted in Oakes, supra, and R. v. Edwards Books and Art Ltd., 1986 CanLII 12 (SCC), [1986] 2 SCR 713. The division between the two analytical processes has been established by this Court in the above decisions. First, consideration will be given to the interests and purposes that are meant to be protected by the particular right or freedom in order to determine whether the right or freedom has been infringed in the context presented to the court. If the particular right or freedom is found to have been infringed, the second step is to determine whether the infringement can be justified by the state within the constraints of s. 1. It is within the perimeters of s. 1 that courts will in most instances weigh competing values in order to determine which should prevail.

[58] In order to address the issues presented by this case it is not necessary for the Court to delineate the boundaries of the broad range of expression deserving of protection under s. 2(b) of the Canadian Charter or s. 3 of the Quebec Charter. It is necessary only to decide if the respondents have a constitutionally protected right to use the English language in the signs they display, or more precisely, whether the fact that such signs have a commercial purpose removes the expression contained therein from the scope of protected freedom.

[59] In our view, the commercial element does not have this effect. Given the earlier pronouncements of this Court to the effect that the rights and freedoms guaranteed in the Canadian Charter should be given a large and liberal interpretation, there is no sound basis on which commercial expression can be excluded from the protection of s. 2(b) of the Charter. It is worth noting that the courts below applied a similar generous and broad interpretation to include commercial expression within the protection of freedom of expression contained in s. 3 of the Quebec Charter. Over and above its intrinsic value as expression, commercial expression which, as has been pointed out, 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. The Court accordingly rejects the view that commercial expression serves no individual or societal value in a free and democratic society and for this reason is undeserving of any constitutional protection.

[60] Rather, the expression contemplated by ss. 58 and 69 of the Charter of the French Language is expression within the meaning of both s. 2(b) of the Canadian Charter and s. 3 of the Quebec Charter. 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. Although the expression in this case has a commercial element, it should be noted that the focus here is on choice of language and on a law which prohibits the use of a language. We are not asked in this case to deal with the distinct issue of the permissible scope of regulation of advertising (for example to protect consumers) where different governmental interests come into play, particularly when assessing the reasonableness of limits on such commercial expression pursuant to s. 1 of the Canadian Charter or to s. 9.1 of the Quebec Charter. It remains to be considered whether the limit imposed on freedom of expression by ss. 58 and 69 is justified under either s. 1 of the Canadian Charter or s. 9.1 of the Quebec Charter, as the case may be.

Devine v. Quebec (Attorney General), [1988] 2 SCR 790, 1988 CanLII 20 (SCC)

Whether the Freedom of Expression Guaranteed by s. 2(b) of the Canadian Charter of Rights and Freedoms and 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

[…]

Do the Challenged Provisions 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 or, Where Applicable, the Guarantee of Equality in s. 15 of the Canadian Charter of Human Rights and Freedoms?

[…]

[30] […] As in Ford, the human right or freedom in issue in this case is freedom of expression guaranteed by s. 3 of the Quebec Charter. In Ford it was found that the right guaranteed by s. 3 extended to protect the freedom to express oneself in the language of one's choice; in this case, however, we have found that s. 3 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. Dean François Chevrette, in his article discussing the operation of s. 9.1, "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, at p. 470, has clarified the relationship among ss. 1 through 9, 9.1 and 10 to the same effect:

[TRANSLATION] One final, delicate question remains. By guaranteeing the equal recognition and exercise of rights and freedoms--in particular the rights and freedoms enshrined in ss. 1 to 9--is s. 10 of the Charter itself subject to s. 9.1, especially given that the latter section is arguably incorporated by reference into ss. 1 to 9? In my view, the answer to this question should be no. Doubtless the rights and freedoms protected under ss. 1 to 9 can ultimately be limited by virtue of s. 9.1--this despite the guarantee of their full and equal exercise provided by s. 10. But the limiting clause does not apply to the principle of equality itself. To conclude otherwise would be to broaden the well-defined scope of s. 9.1.

While it is true that s. 9.1 does not apply to the principle of equality enshrined in s. 10, it does apply to the guarantee of free expression enshrined in 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. Here, sections 52 and 57 do create a distinction based on language of use but do not have the effect of impairing or nullifying rights guaranteed under s. 3. They thus conform to the Quebec Charter. This result is consistent with the reasons of the majority, written by Lamer J., in a recent judgment of this Court, Forget v. Quebec (Attorney General), 1988 CanLII 51 (SCC), [1988] 2 SCR 90. That case concerned the application of certain provisions of the Charter of the French Language and the regulations thereunder which required an appropriate knowledge of French for entry into a professional corporation and provided non-francophones with a means of establishing that they met the requirement by, inter alia, taking a French proficiency test. Although Lamer J. found that the testing procedure had a differential effect on non-francophones and therefore created a distinction based on language of use, he also found that the distinction in no way impaired the right, enshrined in s. 17 of the Quebec Charter, to be admitted to a professional corporation without discrimination. The right guaranteed by s. 17 necessarily contemplated reasonable admission criteria, including French language proficiency and reasonable measures designed to ensure that candidates for admission were proficient. In coming to this conclusion, Lamer J. did not import s. 9.1 into s. 10. Rather, having found a distinction on a ground prohibited by s. 10, he asked whether the distinction impaired the right guaranteed under s. 17 and came to the conclusion that it did not given the scope of the right to be admitted to a professional corporation without discrimination.

Québec (Procureur général) v. Chaussure Brown’s inc , 1986 CanLII 3734 (QC CA) [judgment available in French only]

[OUR TRANSLATION]

[7] Since January 1, 1986, section 58 of Bill 101 has been inoperative under section 3 of the Charter of Rights to the extent that it prescribes that public signage and commercial advertising must be done exclusively in French.

[…]

[25] Therefore, the questions raised in this appeal are:

In the main appeal

Is section 58 of Bill 101 inoperative:

— because it would violate sections 3 and 10 of the Charter of Human Rights and Freedoms?

— because it would violate paragraph 2(b) of the Canadian Charter of Rights and Freedoms?

In the cross-appeal:

Are section 69 of Bill 101 and sections 205 to 208, insofar as they apply to sections 58 and 69, inoperative:

— because they violate sections 3 and 10 of the Quebec Charter?

— because they would violate paragraph 2(b) of the Canadian Charter?

[…]

[86] What allowed the judge to say that the new text of section 58 was a subsequent law is the attention that the legislature paid to drafting transitional sections 34 and 35 of S.Q. 1982, c. 61, which through its section 16 gave primacy to the Charter not only in sections 9 to 38 but also in 1 to 8, including section 3, which concerns us here.

[87] I cannot agree with the trial judge’s conclusion, and I see nothing in the mechanism of transitional sections 34 and 35 that could exclude the rule of interpretation summarized by Professor Côté.

[88] More specifically, I do not accept the distinction made in 1985 C.S. 151 between the chronology and substance.

[89] The substance exists from the moment a law is assented to, and the rest is just a matter of the law coming into force.

[90] I do not find it useful to expand on this point, considering the conclusions I will come to regarding the primacy of section 3 of the Charter since January 1, 1986, on the one hand, and regarding the primacy of paragraph 2(b) of the Canadian Charter since April 17, 1982, on the other hand, with the latter date occurring much earlier than October 1, 1983.

[91] I will conclude this point by stating that it was only on January 1, 1986, the final date established by section 34 of S.Q. 1982, c. 61, that section 3 took precedence over section 58 of Bill 101.

[92] Since section 3 of the Charter has been given primacy over all Quebec laws since January 1, 1986, what are the consequences for section 58 of Bill 101?

[…]

[103] The appellant, seeking to persuade us that [translation] “freedom of expression does not include the freedom to choose the language of expression” (a.f. 39), would like us to endorse a proposition formulated as follows:

[translation]

Considered in its philosophical and historical context, freedom of expression does not include the freedom to express oneself in the language of one’s choice.

(a.f. 42)

[104] With respect, I do not share this view.

[105] Section 3 of the Charter of Rights was enacted in 1975.

[106] Initially, this provision, prescribing fundamental freedoms, had very few practical implications. First, it was subject to section 51, which I cited at the beginning of this opinion, and second, the same section 3 had only the interpretative value ascribed to it by section 53:

53 If any doubt arises in the interpretation of a provision of the Act, it shall be resolved in keeping with the intent of the Charter.

[107] In section 52 cited above, the legislature deliberately did not include section 3 among the sections in the Charter of Rights that should prevail, even over a subsequent law.

[108] No doubt realizing the far-reaching nature of the recognition of fundamental freedoms, the legislature did not want to change everything immediately. It proceeded using a step-by-step approach:

— on October 1, 1983, it made laws subsequent to that date subject to section 3;

— on January 1, 1986, all laws became subject to section 3.

[109] From June 27, 1975, the date the Charter of Rights was assented to, and its section 3, it then took ten and a half years to attain full recognition of the fundamental freedoms.

[110] Yet, of all the freedoms described in section 3, those of conscience, religion, peaceful assembly, association, and even opinion had more or less been achieved in 1975, so only a little accommodation was required; it was freedom of expression that required some time.

[111] Therefore, far from favouring the appellant’s position regarding the philosophical and historical context, it seems to me that the legislature’s intended chronology aligns with the conclusions reached by the trial judge.

[112] I cannot accept the appellant’s suggestion that freedom of expression [translation] “is chiefly concerned with freedom of discussion”.

[113] Should we, in dealing with matters related to language, as we have been asked to do, resort to using the reports of the European Commission of Human Rights or even the decisions of the European Court of Human Rights made and delivered in compliance with the Convention for the Protection of Human Rights and Fundamental Freedoms adopted by the Council of Europe in 1950?

[114] Canada’s language-related issues are so specific to our history and the context of our country that I believe that any solution should be specific to this context.

[115] I therefore conclude that the freedom of expression recognized by the Charter of Rights includes the freedom to use the language of one’s choice.

[…]

[132] In this case, the means prescribed in section 58 of Bill 101 for the purpose of accomplishing the objectives of the bill have nothing to do with the freedom of expression guaranteed by section 3.

[133] What we are talking about here is not the primacy that the French language should enjoy, which is an entirely different issue, but the prohibition of any other language in public signage and commercial advertising.

[134] I have no difficulty in concluding that section 9.1 should not apply.

6. Every person has a right to the peaceful enjoyment and free disposition of his property, except to the extent provided by law.

1975, c. 6, s. 6.

Annotations

156158 Canada inc. c. Attorney General of Quebec , 2017 QCCA 2055 (CanLII)

[127] The wording of s. 6 of the Charter of Quebec is clear:

6. Every person has a right to the peaceful enjoyment and free disposition of his property, except to the extent provided by law.

6. Toute personne a droit à la jouissance paisible et à la libre disposition de ses biens, sauf dans la mesure prévue par la loi.

N.B. – An application for leave to appeal has been filed with the Supreme Court of Canada

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.

1982, c. 61, s. 2.

Annotations

Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 SCR 927, 1989 CanLII 87 (SCC)

[2] The appeal is by leave of this Court from the judgment of the Quebec Court of Appeal (Kaufman and Jacques JJ.A.; Vallerand J.A. dissenting) on September 18, 1986, 1986 CanLII 186 (QC CA), [1986] R.J.Q. 2441, 32 D.L.R. (4th) 641, 3 Q.A.C. 285, 26 C.R.R. 193, allowing an appeal from the judgment of Hugessen A.C.J. of the Superior Court for the District of Montreal on January 8, 1982, [1982] C.S. 96, which dismissed the respondent's action for a declaration that ss. 248 and 249 of the Consumer Protection Act were ultra vires the legislature of the province of Quebec and subsidiarily that they were inoperative as infringing the Quebec Charter of Human Rights and Freedoms, R.S.Q. c. C-12.

[…]

[12] The issues in the appeal in the order in which we propose to address them, to the extent necessary for the disposition of the appeal, may be summarized as follows:

[…]

3. Do ss. 248 and 249 [Consumer Protection Act] 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?

4. If so, is the limit imposed by ss. 248 and 249 on freedom of expression justified under s. 1 of the Canadian Charter and s. 9.1 of the Quebec Charter?

[…]

VI – Whether ss. 248 and 249 Limits Freedom of Expression as Guaranteed by the Canadian and Quebec Charters

A. The Ford and Devine Appeals

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.

Having determined that freedom of expression prevents prohibitions against using the language of one's choice, the question became whether, in the Court's words (at p. 766) "a commercial purpose removes the expression ... from the scope of protected freedom." Thus, while choice of language was the principal matter in those appeals, the commercial element to the expression in issue raised an ancillary question. As the Court made clear at the end of its discussion concerning freedom of expression (at p. 767):

Although the expression in this case has a commercial element, it should be noted that the focus here is on choice of language and on a law which prohibits the use of a language. We are not asked in this case to deal with the distinct issue of the permissible scope of regulation of advertising (for example to protect consumers) where different governmental interests come into play, particularly when assessing the reasonableness of limits on such commercial expression pursuant to s. 1 of the Canadian Charter or to s. 9.1 of the Quebec Charter.

[…]

D. Summary and Conclusion

[56] In the instant case, the plaintiff's activity is not excluded from the sphere of conduct protected by freedom of expression. The government's purpose in enacting ss. 248 and 249 of the Consumer Protection Act and in promulgating ss. 87 to 91 of the Regulation respecting the application of the Consumer Protection Act was to prohibit particular content of expression in the name of protecting children. These provisions therefore constitute limitations to s. 2(b) of the Canadian Charter and s. 3 of the Quebec Charter. They fall to be justified under s. 1 of the Canadian Charter and s. 9.1 of the Quebec Charter.

VII – Whether the Limit on Freedom of Expression Imposed by ss. 248 and 249 is Justified Under s. 9.1 of the Quebec Charter or s. 1 of the Canadian Charter

[57] The issues raised in this part are as follows: (a) whether the meaning, role and effect of s. 9.1 of the Quebec Charter are essentially different from that of s. 1 of the Canadian Charter; (b) whether the scheme put into place by ss. 248 and 249 is so vague as not to constitute a "limit prescribed by law"; (c) whether the materials (hereinafter referred to as the s. 1 and s. 9.1 materials) relied on by the Attorney General of Quebec are relevant to justifying ss. 248 and 249 as a reasonable limit upon freedom of expression; and (d) whether the s. 1 and s. 9.1 materials justify banning commercial advertising directed at persons under thirteen years of age.

A. The Meaning of s. 9.1 of the Quebec Charter of Human Rights and Freedoms

[58] The respondent, Irwin Toy, argued that s. 3 of the Quebec Charter provides an absolute guarantee of free expression. On the respondent's submission, absent legislation declaring that these provisions apply notwithstanding the Quebec Charter, it was not open to the Attorney General to argue that ss. 248 and 249 constitute a reasonable limit to the s. 3 guarantee. However, in Ford, supra, this Court drew the following conclusion about s. 9.1 of the Quebec Charter (at pp. 769-70):

In the case at bar the Superior Court and the Court of Appeal held that s. 9.1 was a justificatory provision corresponding to s. 1 of the Canadian Charter and that it was subject, in its application, to a similar test of rational connection and proportionality. This Court agrees with that conclusion.

Since the test of rational connection and proportionality under s. 9.1 of the Quebec Charter is essentially the same as the test under s. 1 of the Canadian Charter, the two tests will be considered together.

[…]

D. Whether the s. 1 and s. 9.1 Materials Justify Banning Commercial Advertising Directed at Persons Under Thirteen Years of Age

a. Pressing and Substantial Objective

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[75] In sum, the objective of regulating commercial advertising directed at children accords with a general goal of consumer protection legislation, viz. to protect a group that is most vulnerable to commercial manipulation. Indeed, that goal is reflected in general contract doctrine (see, for example, Civil Code of Lower Canada, arts. 987 and 1001 to 1011 respecting contracts with minors). Children are not as equipped as adults to evaluate the persuasive force of advertising and advertisements directed at children would take advantage of this. The legislature reasonably concluded that advertisers should be precluded from taking advantage of children both by inciting them to make purchases and by inciting them to have their parents make purchases. Either way, the advertiser would not be able to capitalize upon children's credulity. The s. 1 and s. 9.1 materials demonstrate, on the