D. Freedom of Expression and Language

Author:Robert J. Sharpe - Kent Roach
Profession:Court of Appeal for Ontario - Faculty of Law, University of Toronto

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In Ford, the Supreme Court of Canada held that the guarantee of freedom of expression in section 2(b) of the Charter includes the right to speak in the language of one’s choice.15Accordingly, section 2(b) provides a check on government action designed to restrict the use of certain languages or to compel expression in a particular language. In effect, this interpretation of section 2(b) protects linguistic minorities against state discrimination and demands tolerance with respect to the use of their languages. Unlike the specific language rights of sections 16 to 23, section 2(b) protects all languages.

Ford, as we have seen, arose out of a challenge to Quebec’s language legislation prohibiting the use of any language other than French on commercial signs or firm names. The Court rejected the argument that the constitution’s specific language rights were a complete code that belied constitutional protection for any other languages. Instead, the Court quoted from an earlier decision involving the Manitoba language guarantees, where it had stated:

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.16

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The Court went on to say:

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.17Language is a central way in which a group expresses its cultural identity and individuals express their personal identity. It follows that laws restricting the use of one’s language will infringe section 2(b) and have to be justified under section 1.

It was acknowledged that Quebec had a pressing and substantial objective in enacting the legislation, given the vulnerable position of French in Quebec because of declining birth rates among franco-phones, a tendency for new immigrants to gravitate to the anglophone community in Quebec, and a predominance of English in the more important economic sectors. The Court accepted that the attempt to...

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