Ford v. Quebec (Attorney General), [1988] 2 S.C.R. 712 (1988)

Docket Number:20306
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ford v.

quebec (a. g.), [1988] 2 S.C.R. 712

The Attorney General of Quebec Appellant v.

La Chaussure Brown's Inc. Respondent and

Valerie Ford Respondent and

McKenna Inc. Respondent and

Nettoyeur et Tailleur Masson Inc. Respondent and

La Compagnie de Fromage Nationale Ltée Respondent and

The Attorney General of Canada, the Attorney General for Ontario and the Attorney General for New Brunswick Interveners indexed as: ford v. quebec (attorney general)

File No.: 20306.

1987: November 16, 17, 18; 1988: December 15.

Present: Dickson C.J. and Beetz, Estey*, McIntyre, Lamer, Wilson and Le Dain* JJ.

on appeal from the court of appeal for quebec

Constitutional law -- Charter of Rights -- Application -- Exception where express declaration -- Provincial legislation requiring that public signs, commercial advertising and firm name should be in French only -- Whether provincial legislation protected from the application of s. 2(b) of the Canadian Charter of Rights and Freedoms by a valid and subsisting override provision -- Canadian Charter of Rights and Freedoms, s. 33 -- Charter of the French Language, R.S.Q., c. C-11, ss. 58, 69, 214 -- An Act to amend the Charter of the French Language, S.Q. 1983, c. 56, s. 52 -- An Act respecting the Constitution Act, 1982, S.Q. 1982, c. 21, ss. 1, 7.

Constitutional law -- Charter of Rights -- Override provision -- Provincial legislation adding standard override provision to all provincial statutes enacted before June 23, 1982 -- Standard override provision given retrospective effect -- Whether standard override provisions enacted by provincial legislation valid -- Whether provincial legislation consistent with s. 33 of the Canadian Charter -- Whether all the provisions in s. 2 and ss. 7 to 15 of the Canadian Charter could be validly overridden by a single enactment -- Whether override provision may have a retrospective effect -- An Act respecting the Constitution Act, 1982, S.Q. 1982, c. 21, ss. 1, 2, 7 -- Charter of the French Language, R.S.Q., c. C-11, s. 214 -- An Act to amend the Charter of the French Language, S.Q. 1983, c. 56, s. 52.

Constitutional law -- Charter of Rights -- Freedom of expression -- Provincial legislation requiring that public signs, commercial advertising and firm name should be in French only -- Whether freedom of expression guaranteed by s. 2(b) of the Canadian Charter of Rights and Freedoms includes the freedom to express oneself in the language of one's choice -- Whether the guarantee of freedom of expression extends to commercial expression -- Whether provincial legislation infringes the guarantee of freedom of expression -- Whether limit imposed by the provincial legislation on freedom of expression justifiable under s. 1 of the Canadian Charter -- Whether a denial or negation of a guaranteed right or freedom could be a limit within s. 1 -- Charter of the French Language, R.S.Q., c. C-11, ss. 58, 69.

Statutes -- Application -- Provincial human rights legislation -- Dates from which s. 3 of the Quebec Charter of Human Rights and Freedoms took precedence over the provisions of the other provincial statutes -- Charter of Human Rights and Freedoms, R.S.Q., c. C-12, ss. 3, 52 -- An Act to amend the Charter of Human Rights and Freedoms, S.Q. 1982, c. 61, ss. 16, 34 -- Charter of the French Language, R.S.Q., c. C-11, ss. 58, 69 -- An Act to amend the Charter of the French Language, S.Q. 1983, c. 56, s. 12.

Civil rights -- Provincial human rights legislation -- Freedom of expression -- Provincial legislation requiring that public signs, commercial advertising and firm name should be in French only -- Whether freedom of expression guaranteed 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 -- Whether the guarantee of freedom of expression extends to commercial expression -- Whether provincial legislation infringes the guarantee of freedom of expression -- Whether limit imposed by the provincial legislation on freedom of expression justifiable under s. 9.1 of the Quebec Charter -- Charter of the French Language, R.S.Q., c. C-11, ss. 58, 69.

Civil rights -- Discrimination based on language -- Provincial legislation requiring that public signs, commercial advertising and firm name should be in French only -- Whether provincial legislation infringes the guarantee against discrimination based on language in s. 10 of the Quebec Charter of Human Rights and Freedoms -- Charter of the French Language, R.S.Q., c. C-11, ss. 58, 69.

In February 1984, the respondents sought a declaration from the Superior Court that ss. 58 and 69, and ss. 205 and 208 to the extent they applied thereto, of the Charter of the French Language, R.S.Q., c. C-11, were inoperative and of no force of effect. Section 58 requires that "Public signs and posters and commercial advertising shall be solely in" French and s. 69 that ". . . only the French version of a firm name may be used in Québec". Sections 205 to 208 deal with the offences, penalties and other sanctions for a contravention of any of the provisions of the Charter of the French Language. The Superior Court allowed the motion in part and declared s. 58 to be inoperative. The Attorney General of Quebec appealed and respondents entered an incidental appeal against the failure of the Superior Court to declare ss. 69 and 205 to 208 inoperative. The Court of Appeal dismissed the appeal and allowed the incidental appeal. This appeal is to determine (1) whether ss. 58 and 69 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; and (2) whether ss. 58 and 69 infringe the guarantee against discrimination based on language in s. 10 of the Quebec Charter.

Held: The appeal should be dismissed. Sections 58 and 69 of the Charter of the French Language, and ss. 205 to 208 thereof to the extent they apply to ss. 58 and 69, infringe s. 3 of the Quebec Charter and are not justified under s. 9.1 of the Quebec Charter. Section 69, and ss. 205 to 208 to the extent they apply to s. 69, infringe s. 2(b) of the Canadian Charter and are not justified by s. 1 of the Canadian Charter. Sections 58 and 69 infringe s. 10 of the Quebec Charter.

(a) Application of Canadian Charter

Section 58 of the Charter of the French Language, replaced by s. 12 of An Act to amend the Charter of the French Language, S.Q. 1983, c. 56, is protected from the application of s. 2(b) of the Canadian Charter by s. 52 of the amending Act -- proclaimed in force on February 1, 1984. Section 52 is a valid and subsisting override provision enacted pursuant to s. 33 of the Canadian Charter. The essential requirement of form laid down by s. 33 is that there must be an express declaration that an Act or a provision of an Act shall operate notwithstanding a provision included in s. 2 or ss. 7 to 15 of the Canadian Charter. A section 33 declaration is sufficiently express if it refers to the number of the section, subsection or paragraph of the Charter which contains the provision or provisions to be overridden. Of course, if a legislature intends to override only a part of a provision contained in a section then there would have to be a sufficient reference in words to the part to be overridden. Section 69 of the Charter of the French Language is not protected from the application of s. 2(b) since it was not affected by An Act to amend the Charter of the French Language.

Section 214 of the Charter of the French Language no longer protects s. 69 from the application of s. 2(b) of the Canadian Charter. Pursuant to s. 33(3) of the Canadian Charter, s. 214, enacted by s. 1 of An Act respecting the Constitution Act, 1982, S.Q. 1982, c. 21, ceased to have effect on June 23, 1987, five years after the enacting Act came into force.

Section 1 of An Act respecting the Constitution Act, 1982, which re-enacted all of the Quebec statutes adopted before April 17, 1982 -- the date the Canadian Charter came into force -- with the addition in each of the standard override provision, was an effective exercise of legislative authority that did not prevent the override declaration so enacted in each statute from being an express declaration within the meaning of s. 33 of the Canadian Charter. However, in providing that s. 1 should have effect from April 17, 1982, s. 7 of the Act gave retrospective effect to the override provision. This is contrary to s. 33 of the Canadian Charter which permits prospective derogation only. Section 7 is therefore to the extent of this inconsistency with s. 33 of the Canadian Charter, of no force or effect, with the result that the standard override provisions enacted by s. 1 of that Act came into force on June 23, 1982 in accordance with the first paragraph of s. 7.

(b) Application of Quebec Charter

Sections 58 and 69 of the Charter of the French Language are both subject to s. 3 of the Quebec Charter of Human Rights and Freedoms. 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, 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 word "subsequent" in s. 34 refers to an enactment that is subsequent in time to October 1, 1983, regardless of its effect on existing legislation. As a result, s. 3 of the Quebec Charter was applicable to s. 58 of the Charter of the French Language from February 1, 1984 -- the date s. 58, as amended by s. 12 of An Act to amend the Charter of the French Language, S.Q. 1983, c. 56, was proclaimed in force -- and was applicable to s. 69 of the Charter of the French Language not later than January 1, 1986.

(c) Freedom of Expression...

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