Chaussure Brown's Inc. et al. v. Québec (Procureur général), (1988) 90 N.R. 84 (SCC)

• Judge: Dickson, C.J.C., Beetz, Estey, McIntyre, Lamer, Wilson and Le Dain, JJ.
• Court: Supreme Court (Canada)
• Case Date: December 15, 1988
• Jurisdiction: Canada (Federal)
• Citations: (1988), 90 N.R. 84 (SCC);[1988] 2 SCR 712;1988 CanLII 19 (SCC);54 DLR (4th) 577;90 NR 84;AZ-89111009;JE 89-30;[1988] SCJ No 88 (QL);10 CHRR 5559;13 ACWS (3d) 7;19 QAC 69;36 CRR 1;6 WCB (2d) 186

Chaussure Brown's Inc. v. Qué. (P.g.) (1988), 90 N.R. 84 (SCC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

.........................

Le Procureur general du quebec (appellant) v. La Chaussure Brown's Inc., Valerie Ford, McKenna Inc., Nettoyeur et Tailleur Masson Inc. et la Compagnie de fromage Nationale Ltée (respondent) and the Attorney General of Canada, the Attorney General of Ontario and The Attorney General of New Brunswick (intervenors)

(20306)

Indexed As: Chaussure Brown's Inc. et al. v. Québec (Procureur général)

Supreme Court of Canada

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

December 15, 1988.

Summary:

Chaussure Brown's Inc. and others sought a declaration that, among others, the following provisions of Quebec's Charter of the French Language were inoperative: 1) s. 58 providing for the exclusive use of French on public signs and in commercial advertising and 2) s. 69 providing that a French business name only can be used in Quebec. The plaintiffs alleged that these provisions violated s. 2(b) of the Canadian Charter of Rights and Freedoms and s. 3 of Quebec's Charter of Human Rights and Freedoms, both guaranteeing freedom of expression. The plaintiffs also alleged violation of s. 10 of Quebec's Charter of Human Rights and Freedoms guaranteeing against discrimination.

The Quebec Superior Court, in a judgment reported at [1985] C.S. 147, 18 D.L.R.(4th) 711, allowed the action in part. The Attorney General of Quebec appealed. The plaintiffs filed an incidental appeal.

The Quebec Court of Appeal, in a judgment reported at [1987] R.J.Q. 80, 5 Q.A.C. 119; 36 D.L.R.(4th) 374, dismissed the appeal but allowed the incidental appeal. The Attorney General of Quebec appealed.

The Supreme Court of Canada dismissed the appeal and held as follows: 1) s. 2(b) of the Canadian Charter of Rights and Freedoms does not apply to s. 58 of the Charter of the French Language because of a valid notwithstanding clause inserted in the Charter of the French Language; 2) s. 58 of the Charter of the French Language violates s. 3 of Quebec's Charter of Human Rights and Freedoms guaranteeing freedom of expression; 3) s. 69 of the Charter of the French Language violates both s. 3 of Quebec's Charter of Human Rights and Freedoms and s. 2(b) of the Canadian Charter of Rights and Freedoms guaranteeing freedom of expression; 4) ss. 58 and 69 of the Charter of the French Language violate s. 10 of Quebec's Charter of Human Rights and Freedoms guaranteeing against discrimination; 5) ss. 58 and 69 of the Charter of the French Language are not reasonable limits prescribed by law as allowed by s. 1 of the Canadian Charter of Rights and Freedoms and s. 9.1 of Quebec's Charter of Human Rights and Freedoms; 6) ss. 58 and 69 of the Charter of the French Language are inoperative.

Civil Rights - Topic 7

General principles - Right v. Freedom - The Attorney General of Quebec argued that extending freedom of expression to the freedom to choose the language of expression would undermine the linguistic guarantees found in s. 133 of the Constitution Act, 1867 and ss. 16 to 23 of the Canadian Charter of Rights and Freedoms - The Supreme Court of Canada, after discussion, rejected this argument and held the opposite because freedom to choose the language of expression and the linguistic rights found in the Constitution of Canada are different - The latter are specific rights forming part of a "precise scheme" on certain government services - The former is a constitutionally guaranteed human freedom unrelated to the "precise scheme" on certain government services - See paragraphs 41, 43 and 44.

Civil Rights - Topic 1093

Discrimination - Language - Distinction, exclusion or preference based on language, what constitutes - Quebec's Charter of the French Language contained: 1) s. 58 providing for French only in public signs and commercial advertising and 2) s. 69 providing that a French business name only could be used in Quebec - The Supreme Court of Canada held that ss. 58 and 69, though applying to all, in effect allowed francophones to employ their language of use while denying this right to anglophones and other non- francophones - Because persons were thus treated differently on the basis of their language of use, ss. 58 and 69 therefore created a distinction based on language - See paragraphs 74 to 81.

Civil Rights - Topic 1094

Discrimination - Language - Whether distinction, exclusion or preference based on language violates a human right or freedom - Quebec's Charter of the French Language contained: 1) s. 58 providing for French only in public signs and commercial advertising and 2) s. 69 providing that a French business name only could be used in Quebec - The Supreme Court of Canada held first that ss. 58 and 69 constituted a distinction based on language because their effect was to allow francophones to employ their language of use while denying this right to anglophones and other nonfrancophones - The court then held that this distinction violated freedom of expression contrary to Quebec's Charter of Human Rights and Freedoms because freedom to choose the language of expression was infringed - See paragraphs 74 to 81.

Civil Rights - Topic 1801

Freedom of expression - General - Expression, what constitutes - Language - The Supreme Court of Canada held that language is by itself a form of expression and not just a medium for the transmission of expression - As authority, the court quoted from Fishman, The Sociology of Language (1972), p. 4: "... 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" - See paragraph 42.

Civil Rights - Topic 1801

Freedom of expression - General - Expression, what constitutes - Commercial expression - The Supreme Court of Canada stated: "It was not disputed [by the parties] 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" - See paragraph 46.

Civil Rights - Topic 1803

Freedom of expression - Scope of - Language - After having held that language is a form of expression, the Supreme Court held that there cannot be freedom of expression by means of language if one is prohibited from using the language of one's choice - Therefore, because language is a form of expression and because the Canadian and Quebec Charters of Rights and Freedoms guarantees freedom of expression, freedom of expression includes the freedom to choose the language of expression - See paragraphs 39 to 44.

Civil Rights - Topic 1803

Freedom of expression - Scope of - Commercial expression - After having held 1) that public signs and posters, commercial advertising and the firm name referred to in ss. 58 and 69 of Quebec's Charter of the French Language, all conveniently characterized as "commercial expression", are a form of expression, 2) that language is a form of expression and 3) that freedom of expression guaranteed by the Canadian and Quebec Charters of Rights and Freedoms extends to the choice of language of expression, the Supreme Court of Canada held: 1) freedom of expression extends to commercial expression and 2) freedom of expression includes the choice of the language of commercial expression - See paragraphs 45 to 60.

Civil Rights - Topic 1860.7

Freedom of expression - Limits on - Imposition of single language in public signs and commercial advertising - Quebec's Charter of the French Language contained: 1) s. 58 providing for French only in public signs and commercial advertising and 2) s. 69 providing that a French business name only could be used in Quebec - The Supreme Court of Canada declared s. 58 inoperative because it violated the guarantee of freedom of expression found in Quebec's Charter of Human Rights and Freedoms - (The Canadian Charter of Rights and Freedoms did not apply to s. 58 because of a valid notwithstanding clause) - Section 69 was declared inoperative because it violated the guarantee of freedom of expression found in both Charters.

Civil Rights - Topic 1860.7

Freedom of expression - Limits on - Imposition of single language in public signs and commercial advertising - Quebec's Charter of the French Language contained the following limits to freedom of expression: 1) s. 58 providing for French only in public signs and commercial advertising and 2) s. 69 providing that a French business name only could be used in Quebec - The Supreme Court of Canada held that these limits were not reasonable under ss. 1 and 9.1 respectively of the Canadian and Quebec Charters of Rights and Freedoms as applicable because it was not shown that excluding all other languages was a necessary and proportionate means to attain the valid objective of ensuring the predominance of French in Quebec through, among others, the promotion and preservation of a predominantly French linguistic visage - See paragraphs 61 to 73.

Civil Rights - Topic 7168

Federal or provincial legislation - Application - Exceptions - Legislative limits to rights and freedoms - The Supreme Court of Canada held that s. 9.1 of Quebec's Charter of Human Rights and Freedoms is a limiting provision to rights and freedoms similar to s. 1 of the Canadian Charter of Rights and Freedoms - Although s. 9.1 reads differently than s. 1, its principle is the same - Therefore, the application of s. 9.1 is subject to the same criteria as s. 1: 1) a legislative objective sufficiently important to warrant overriding a constitutional right, 2) a rational connection between the objective and the means chosen to attain it and 3) proportionality between the objective and the means - See paragraphs 62 and 63.

Civil Rights - Topic 7168

Federal or provincial legislation - Application - Exceptions - Legislative limits to rights and freedoms - Quebec's Charter of the French Language contained the following limits to freedom of expression: 1) s. 58 providing for French only in public signs and commercial advertising and 2) s. 69 providing that a French business name only could be used in Quebec - The Supreme Court of Canada held that these limits were not reasonable under ss. 1 and 9.1 respectively of the Canadian and Quebec Charters of Rights and Freedoms as applicable because it was not shown that excluding all other languages was a necessary and proportionate means to attain the valid objective of ensuring the predominance of French in Quebec through, among others, the promotion and preservation of a predominantly French linguistic visage - See paragraphs 61 to 73.

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limit prescribed by law (s. 1) - Quebec's Charter of the French Language contained the following limits to freedom of expression: 1) s. 58 providing for French only in public signs and commercial advertising and 2) s. 69 providing that a French business name only could be used in Quebec - The Supreme Court of Canada held that these limits were not reasonable under ss. 1 and 9.1 respectively of the Canadian and Quebec Charters of Rights and Freedoms as applicable because it was not shown that excluding all other languages was a necessary and proportionate means to attain the valid objective of ensuring the predominance of French in Quebec through, among others, the promotion and preservation of a predominantly French linguistic visage - See paragraphs 61 to 73.

Civil Rights - Topic 8355

Canadian Charter of Rights and Freedoms - Application - Exceptions - Not withstanding provision - The Supreme Court of Canada held that s. 33 of the Canadian Charter of Rights and Freedoms, allowing Parliament and the Legislatures to enact notwithstanding provisions, sets out only requirements of form - Its principal requirement is that the notwithstanding provision thus enacted 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 Charter - Reference to Charter section numbers is sufficient unless only a specific provision is to be derogated from in which case it must be expressly spelled out - Among other requirements is a rule against the retrospectivity of a notwithstanding clause - See paragraphs 23 to 34.

Quebec Procedure - Topic 4821

Declaratory judgments - General - The Supreme Court of Canada stated that on a motion for declaratory judgment, a court should declare the law as it exists at the time of the judgment - See paragraph 24.

Quebec Procedure - Topic 7992

Appeal - Evidence in appeal - Additional evidence - The Attorney General of Quebec sought to adduce for the first time in the Supreme Court of Canada documents in support of a submission that restrictions to freedom of expression found in Quebec's Charter of the French Language were reasonable limits allowed by ss. 1 and 9.1 respectively of the Canadian and Quebec Charters of Rights and Freedoms - The Supreme Court of Canada declared those documents admissible because no prejudice was suffered by the parties, who were prepared to argue the merits of the material and did in fact do so - See paragraphs 67 to 71.

Words and Phrases

" Subsequent" legislation - The Supreme Court of Canada discussed the meaning of "subsequent" legislation found in an amendment to Quebec's Charter of the French Language - The court held that "subsequent" legislation in the amendment meant legislation whose date of enactment came after the date of enactment of the amendment.

Cases Noticed:

Alliance des professeurs de Montreal v. Procureur général du Quebec, [1985] C.S. 1272, revd. [1985] C.A. 376 [paras. 18, 19, 27, 28, 29, 31].

Devine et al. v. Québec (Procureur général), [1985] C.S. 355, affd. [1987] R.J.Q. 50; 5 Q.A.C. 81, affd. in part (1988), 90 N.R. 48 (sub. nom. Singer (Allan) Ltd. v. Québec (Procureur général) et al.), consd. [paras. 18, 19, 22, 26, 42, 45, 71, 72, 74, 77].

Irwin Toy Ltd. c. Québec (Procureur général), [1986] R.J.Q. 2441; 3 Q.A.C. 285, refd to. [paras. 22, 45, 50, 52, 64].

Gustavson Drilling (1964) Ltd. v. Minister of National Revenue, [1977] 1 S.C.R. 271; 7 N.R. 401, folld. [para. 36].

Manitoba Language Rights Reference, [1985] 1 S.C.R. 721; 59 N.R. 321, refd to. [para. 39].

Montréal (City of) v. MacDonald, [1986] 1 S.C.R. 460; 67 N.R. 1, refd to. [paras. 41, 43].

Société des Acadiens du Nouveau-Brunswick Inc. v. Minority Language School Board No. 50 and Association of Parents for Fairness in Education, Grand Falls District 50 Branch, [1986] 1 S.C.R. 549; 66 N.R. 173, refd to. [paras. 41, 43].

R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; 58 N.R. 81; 60 A.R. 161; 18 D.L.R.(4th) 321, consd. [paras. 43, 53, 57, 67].

R. v. Videoflicks Ltd. et al., [1986] 2 S.C.R. 713; 71 N.R. 161; 19 O.A.C. 239; 14 D.L.R.(4th) 10, folld. [paras. 57, 62].

Klein and Dvorak v. Law Society of Upper Canada (1985), 8 O.A.C. 161; 16 D.L.R.(4th) 489, consd. [para. 51].

Grier v. Alberta Optometric Association (1987), 79 A.R. 36; 42 D.L.R. (4th) 327 (Alta. C.A.), consd. [paras. 51, 52].

Dolphin Delivery Ltd. v. Retail, Wholesale and Department Store Union, Local 580, Peterson and Alexander, [1986] 2 S.C.R. 573; 71 N.R. 83, consd. [para. 55].

Quebec Association of Protestant School Boards et al. v. Attorney General of Quebec et al., [1982] C.S. 673, affd. [1983] C.A. 77, affd. [1984] 2 S.C.R. 66; 54 N.R. 196, consd. [paras. 64, 65].

R. v. Morgentaler, [1988] 1 S.C.R. 30; 82 N.R. 1; 26 O.A.C. 1, folld. [para. 66].

Skapinker v. Law Society of Upper Canada, [1984] 1 S.C.R. 357; 53 N.R. 169; 3 O.A.C. 321; 9 D.L.R.(4th) 161, refd to. [para. 67].

Southam Inc. v. Hunter, [1984] 2 S.C. R. 145; 55 N.R. 241, refd to. [paras. 57, 67].

Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177; 58 N.R. 1, refd to. [para. 67].

Ontario Human Rights Commission and O'Malley v. Simpsons-Sears, [1985] 2 S.C.R. 536; 64 N.R. 161, refd to. [para. 77].

Canadian National Railway Co. v. Bhinder and Canadian Human Rights Commission, [1985] 2 S.C.R. 561; 63 N.R. 185, refd to. [para. 77].

Forget v. Quebec (Procureur général) and Office de la langue française, [1988] 2 S.C.R. 90; 87 N.R. 37, folld. [paras. 78, 79, 81].

R. v. Oakes, [1986] 1 S.C.R. 103; 65 N.R. 87; 14 O.A.C. 335; 26 D.L.R. (4th) 200, folld. [paras. 48, 62, 67].

Vingt-trois habitants d'Alsemberg et de Beersel c. La Belgique (1963), 6 Annuaire de la Convention européenne des droits de l'homme 333, dist. [para. 44].

Habitants de Leeuw-St-Pierre c. La Belgique (1965), 8 Annuaire de la Convention Européenne des droits de l'homme 339, dist. [para. 44].

X. c. La Belgique (1965), 8 Annuaire de la Convention européenne des droits de l'homme 283, dist. [para. 44].

X. c. L'Irlande (1970), 13 Annuaire de la Convention européenne des droits de l'homme 793, dist. [para. 44].

Affaire "Relative à certains aspects du régime linguistique de l'enseignement en Belgique" (1968), 11 Annuaire de la Convention européenne des droits de l'homme 833, dist. [para. 44].

Valentine v. Chrestensens (1942), 316 U.S. 52, consd. [para. 47].

Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council Inc. (1976), 425 U.S. 748, consd. [paras. 47, 50].

Central Hudson Gas & Electric Corp. v. Public Service Commission of New York (1980), 447 U.S. 557, consd. [paras. 48, 49].

Posadas de Puerto Rico Associates v. Tourism Co. of Puerto Rico (1986), 106 S. Ct. 2968, consd. [para. 49].

Statutes Noticed:

Constitution Act 1867, sect. 133.

Constitution Act 1982, sect. 52.

Constitution Act 1982, Act respecting the, S.Q. 1982, c. 21, sect. 1, sect. 2, sect. 5, sect. 6, sect. 7.

Charter of the French Language, R.S.Q. 1977, c. C-11, sect. 58, sect. 69, sect. 89, sect. 205, sect. 206, sect. 208, sect. 209, sect. 214.

Charter of the French Language, Act to amend the, S.Q. 1983, c. 56, sect. 12, sect. 52.

Charter of Human Rights and Freedoms, R.S.Q. 1977, c. C-12, sect. 3, sect. 9.1, sect. 10, sect. 51, sect. 52.

Charter of Human Rights and Freedoms, Act to amend the, S.Q. 1982, c. 61, sect. 2, sect. 3, sect. 16, sect. 34.

Canadian Charter of Rights and Freedoms, sect. 1, sect. 2(b), sect. 7, sect. 8, sect. 9, sect. 10, sect. 11, sect. 12, sect. 13, sect. 14, sect. 15, sect. 16, sect. 17, sect. 18, sect. 19, sect. 20, sect. 21, sect. 22, sect. 23, sect. 24(1), sect. 33.

Consumer Protection Act, R.S.Q. 1977, c. P-40.1, sect. 364.

Interpretation Act, R.S.C. 1970, c. I-23, sect. 36(f).

Interpretation Act, R.S.Q. 1977, c. I-16, sect. 13.

Supreme Court of Canada Act, R.S.C. 1970, c. S-19, sect. 67.

Authors and Works Noticed:

Côté, Pierre-André, Interprétation des lois, 1982 [French version, para. 38]; p. 105 [French version, para. 36].

Côté, Pierre-André, The Interpretation of Legislation in Canada, Translated by Katherine Lippel, John Philpot and Bill Schabas, 1984 [English version, para. 38]; p. 96 [English version, para. 36].

Emerson, Thomas I., Toward a General Theory of the First Amendment (1963), 72 Yale L.J. 877, p. 878 [para. 56].

Fishman, Joshua A., The Sociology of Language: An Interdisciplinary social approach to language in society, 1972, p. 4 [para. 42].

Jackson, Thomas H. and Jeffries, John Calvin, Commercial Speech: Economic Due Process and the First Amendment (1979), 65 Va. L. Rev. 1 [paras. 48, 49].

Kurland, Philip B., Posadas de Puerto Rico v. Tourism Company: 'Twas Strange, 'Twas Passing Strange; 'Twas Pitiful, 'Twas Wondrous Pitiful, [1986] Sup. Ct. Rev. 1 [para. 49].

Langlois, Raynold, Les clauses limitatives des Chartes canadienne et québécoise des droits et libertés et le fardeau de la preuve, in Perspectives canadiennes et européennes des droits de la personne, Daniel Turp and Gérald A. Beaudoin eds., 1986, pp. 159 to 186 [para. 63].

Lively, Donald E., The Supreme Court and Commercial Speech: New Words with an Old Message (1987), 72 Minn. L. Rev. 289 [para. 49].

Sharpe, Robert J., Commercial Expression and the Charter (1987), 37 U. of T.L.J. 229 [para. 48]; p. 232 [para. 56].

The Supreme Court--Leading Cases (1986), 100 Harv. L. Rev. 100 [para. 48].

Weinberg, Jonathan, Constitutional Protection of Commercial Speech (1982), 82 Colum. L. Rev. 720 [para. 49].

Counsel:

Yves de Montigny, André Tremblay and Richard Tardif, for the Procureur général du Québec (Attorney General);

Harvey Yarosky and Allan R. Hilton, for the respondents;

Georges Emery, Q.C., André Bluteau and René LeBlanc, for the Attorney General of Canada;

Lorraine Weinrib, for the Attorney General of Ontario;

Grant S. Garneau, for the Attorney General of New Brunswick.

Solicitors of Record:

Yves de Montigny and Jean-K. Samson, Sainte-Foy, Québec, for the Procureur général du Québec (Attorney General);

Yarosky, Fish, Isaacs & Daviault, Montréal, Québec, and Clarkson, Tétrault et Ass., Montréal, Québec, for the respondents;

Piché, Emery, Montréal, Québec, and André Bluteau and René LeBlanc, Ottawa, Ontario, for the Attorney General of Canada;

Richard F. Chaloner, for the Attorney General of Ontario;

Gordon F. Gregory, Fredericton, New Brunswick, for the Attorney General of New Brunswick.

This appeal was heard on November 16, 1987, by Dickson, C.J.C., Beetz, Estey, McIntyre, Lamer, Wilson and Le Dain, JJ., of the Supreme Court of Canada.

The Supreme Court of Canada delivered the following judgment in both official languages on December 15, 1988.