MiniReview MR3E THE QUEBEC CHARTER OF THE FRENCH LANGUAGE: THE PRESENT SITUATION JeanCharles Ducharme Law and Government Division 24 January 1989 Library of Parliament Bibliothèque du Parlement Research Branch
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U,~ (!i CANADA THE QUEBEC CHARTER OF THE FRENCH LANGUAGE: THE PRESENT SITUATION I NTRODUCTION Since Bill 101 (Charter of the French Language, R.S.Q. c. C li) received Royal Assent on 26 August 1977, it has been the subject of much debate and discussion. It has also been changed in two ways: judicially and legislatively. The following is an overview of the judicial decisions which nullified certain of the bill s provisions, and of significant legislative amendments made to it in 1983 and 1988. JUDICIAL DECISIONS As might be expected, the Charter of the French Language has been the subject of a number of court challenges and decisions, four of which by the Supreme Court of Canada have limited its application. In Attorney General of Quebec v. Blaikie, [1979] 2 S.C.R. 1016, the Court held that the word Act~used in s. 133 of the Constitution Act, 1868, includes regulations, and that the expression Courts of Quebec used in the same section includes courts governed by s. 96 of the Constitution Act, 1867 as well as other tribunals (including administrative tribunals). As a result, bilingualism in the courts is protected by the Constitution; translation of legislation is not sufficient: the legislation must be enacted in both languages.
2 The second Blaikie decision, Attorney General of Quebec v. Blaikie, [1981] 1 S.C.R. 312, held that ss. 7 to 13 of the Charter of the French Languag~e contravene s. 133 of the Constitution Act, 1867 because the expression Act includes regulations made by the government, a minister or a group of ministers, as well as the rules of practice of the courts, the rules of the administration and the rules of semipublic agencies, with the exception of directives. The two Blaikie decisions thus invalidated Chapter III of Title I of the Charter of the French Language, entitled The Language of the Legislature and the Courts. In addition, in Attorney General of Quebec v. Quebec Association of Protestant School Boards, [1984] 2 S.C.R. 66, the Court held that ss. 72 and 73 of the Charter of the French Language were incompatible with s. 23 of the Canadian Charter of Rights and Freedoms. The Canada clause thus prevails over the Quebec clause in relation to the right of parents to have their children educated in English schools in Quebec. As a result, parents who received their elementary education in English anywhere in Canada, and not only in Quebec, now enjoy this right. Finally, on 15 December 1988, the Supreme Court of Canada handed down two judgments (Chaussure Brown s Inc. and Singer)* invalidating sections 58 to 61 and 68 of Bill 101. These provisions, which related to commercial signs and firms names, were declared inconsistent with freedom of expression and the right to nondiscrimination guaranteed by paragraph 2(b) of the Canadian Charter of Rights and Freedoms and sections 3 and 10 of the Quebec Charter of Human Rights and Freedoms. The Court stated that freedom of expression includes freedom to use the language of one s choice, thus associating the message with the means of expression. The Court stated also that commercial expression is part of freedom of expression, as it is of political expression, because in the present consumer age, commercial expression has an important role in helping individuals to make clear economic choices. The Court also concluded that banning languages other than French is not a reasonable limit as envisaged by the Canadian and Quebec * Minireview MR18 deals entirely with these judgments.
3 Charters. However, the Court stated that a marked predominance of French, not excluding the use of another language, would be reasonable. The Court also ruled that these sections were discriminatory in regard to section 10 of the Quebec Charter, because their effect was not the same for Francophones, who would be allowed to use their usual language, as for nonfrancophones, who would not be. Finally, the Court recognized Quebec s jurisdiction over linguistic matters, in ruling that it was not an independent matter of legislation but rather ancillary to the exercise of jurisdiction with respect to subject matter assigned by the Constitution Act, 1867. Moreover, the Court stated that section 58 of Bill 101 was not a matter of criminal law, because it was only part of the regulations dealing with an aspect of commercial activity. LEGISLATIVE AMENDMENTS The Act to amend the Charter of the French Language (S.Q. 1983, c. 56), which received Royal Assent on 22 December 1983, was the first legislative amendment to Bill 101. Generally speaking, this Act introduced more flexibility into the enforcement of the Charter. The most significant provisions are as follows: respect for the institutions of the Englishspeaking community of Quebec has been added to respect for ethnic minorities in the preamble to the Charter (s.i); the requirement for knowledge of the French language for employment in the administration has been relaxed somewhat (s.2); there is now freedom of choice correspondence within agencies speaking clients, subject to translation on request (s.6); in the language of serving nonfrench a requirement for there is greater flexibility in the criteria for knowledge of French for obtaining a professional permit (s.9);
4 there is provision for exemption by regulation from the requirement for French on product labels (s.li); bilingual signs are authorized specializing in the sale of specialities (s.13); in establishments foreign national eligibility for admission to English schools has been extended to children whose parents received the greater part (no longer all) of their elementary instruction in English (s.15), or come from a province where instruction in French is comparable to instruction in English offered in Quebec (s.20); the provisions for francization programs for business firms have been strengthened (s.30); special agreements may now be reached to permit the use of a language other than French in research centres (s.34) and not only in agency headquarters; the powers of the Office de la langue française have been widened to include the devising of francization programs, supervising them and ensuring that they meet their objectives (s.38); the expression Commission de surveillance ide la langue française] has been replaced by the expression Commission de protection [de la langue française] (s.43). On 13 November 1986, the Minister of Cultural Affairs, Lise Bacon, tabled Bill 140, entitled An Act to amend the Charter of the French language. This bill was designed to reform the government agencies responsible for the enforcement of the Charter; however, it provoked so much reaction throughout Quebec society that the Minister responsible decided to allow it to die on the order paper. Briefly, Bill 140 would have provided for the merger of the Office de la langue française and the Commission de protection de la langue française into a single agency, the Office de la langue française. Thus the present mandate of the Office, which is to promote, correct and enrich the French language, would have been joined with that of the Commission, which is to receive and investigate complaints. Because of the requirement that investigators work with the persons concerned to find solutions that
BIBLIOTH~QUE DU PARLEMENT 5 would comply with the Charter, enforcement procedures would have encouraged compliance more than the present procedures. Finally, Bill 140 would also have provided for the replacement of the Conseil de la langue française by a Haut comitë de la lang~ue française, which would have been responsible for advising the Minister on Quebec policy on the French language and for establishing and maintaining relationships with organizations working to develop and promote the French language and encourage its use. Bill 142, An Act to again amend the Act respecting health and social services, received Royal Assent on 19 December 1986. The purposes of that Act are: (1) to adapt health and social services to regional needs; (2) to provide for the right of all English speaking individuals to receive these services in their own language, in accordance with the organization and resources available to institutions; (3) to provide for procedures to make services available in English to recipients; (4) to promote access to services for members of the various cultural communities. While this legislation is independent of Bill 101, it was tabled at the same time as Bill 140 and also relates to language rights. Finally, after both judgments of the Supreme Court of Canada invalidating the provisions for commercial signs and firms names in Bill 101, the Quebec National Assembly modified it for the second time in adopting, on 21 December 1988, Bill 178, An Act to Amend the Charter of the French Language. First, that bill provides that French only must be used on signs: (1) outside commercial establishments, except for cultural activities or the sale of ethnic specialties; (2) inside certain establishments (such as commercial centres); and (3) inside public means of transport and their access routes. Second, Bill 178 allows the use of another language inside establishments, as long as French is predominant. However, this application will depend on the regulations to be tabled. Firms employing SO persons or more, and those employing between 4 and 49 persons and who are franchised or use the same trademark as two or more other
6 business firms have to wait until the coming into force of regulations covering the use of a language other than French on inside signs. These regulations will be drafted in reference to the location of these firms and the language of the customers. Independent business firms employing S to 49 persons and all business firms employing 4 persons or fewer do not have to wait for such regulations in order to be allowed to use a language other than French on their inside signs, as long as French is predominant. Finally, Bill 178 overrides the application of ss. 2(b) and 15 of the Canadian Charter of Rights and Freedoms and ss. 3 and 10 of the Quebec Charter of Human Rights and Freedoms. CONCLUS ION As we have seen, the Charter of the French language has been amended as much by judicial decision as by legislation. The Canadian and Quebec charters of rights have been relevant factors in these decisions. Thus, unless the National Assembly relies on the non obstante clauses in the two charters (s. 33 of the Canadian Charter of Rights and Freedoms s. 52 of the Quebec Charter of Human Rights and Freedoms), we anticipate other judicial repercussions. We are faced here with classic debate between individual rights and collective rights and difficulty of finding an equilibrium between them. and may the the