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Case Summary
Devine v. Quebec (Attorney General)
Devine v. Quebec (Attorney General)
[1988] 2 S. C. R. 790
decided: December 15, 1988
FACTS
Allan Singer Ltd. (Singer) was a printer and stationer in Montreal who
(1) had a long standing business in Montreal, (2) served primarily
Anglophones, (3) desired to serve its clientele in English and (4)
advertised its business by means of an English sign on the premises,
posted some thirty years ago. Under the Charter of the French Language,
administrative and penal action were taken against Singer for displaying
said English sign.
Singer, with several other plaintiffs, submitted an action in nullity
to Superior Court. In the action, Singer challenged the validity ss. 52,
57, 58, 59, 60 and 61 of the Charter of French Language and the Regulation
respecting the language of commerce and business. Sections 52 and 57
required certain items to be in French. In addition, these sections,
together with s. 89 of the Charter of French Language, permitted the use
of another language with French. Section 58 required the posting of public
signs and commercial advertising to be solely in French. Sections 59, 60
and 61 created exemptions to s. 58.
In Superior Court, Singer argued three points. First, the challenged
sections of the Charter of the French Language were outside of the
jurisdiction of the Quebec legislature. Second, the sections infringed
upon the guarantee of freedom of expression in s. 3 of the Quebec Charter
of Human Rights and Freedoms. Third, the sections infringed upon the
guarantee against discrimination based upon language in s. 10 of the
Quebec Charter.
LOWER COURTS
Superior Court
The Superior Court dismissed Singer’s action in nullity. The Court
ruled that (1) the Charter of French Language did fall within provincial
jurisdiction, (2) the legislation did not violate freedom of expression
under s. 3 of the Quebec Charter, and (3) the legislation did not infringe
upon s. 10. In regards to s. 3, the Court asserted that freedom of
expression did not include the right to choose one’s language of
expression. In regards to s. 10, the Court argued that the legislation
applied equally to all persons in Quebec and, as such, was not
discriminatory. Singer appealed the decision to the Court of Appeal.
Court of Appeal
Singer’s appeal to the Court of Appeal was dismissed. The Court agreed
with the Superior Court that the legislation fell within provincial
jurisdiction and that s. 10 was not violated. In regards to s. 3, the
Court concluded that it could not render the challenged provisions
unlawful. This was so, because, at the time of the judgment in the
Superior Court, s. 52 of the Quebec Charter limited s. 3 to an
interpretive role in which it could not have precedence over other Quebec
statutes. Singer appealed the Court of Appeal’s decision to the Supreme
Court. In this appeal, Singer continued to rely on ss. 3 and 10 of the
Quebec Charter. In addition, Singer invoked ss. 2(b) and 15 of the
Canadian Charter of Rights and Freedoms.
ISSUES
The Supreme Court considered five issues:
- Whether the Charter of the French Language (ss. 52, 57, 58, 59, 60
and 61) and the Regulation respecting the language of commerce and
business were within provincial jurisdiction under the Constitution Act,
1867.
- Whether the challenged legislation was protected from the Canadian
Charter under s. 33 of the Canadian Charter.
- Whether the challenged legislation infringed upon the freedom of
expression guaranteed by s. 2(b) of the Canadian Charter and s. 3 of the
Quebec Charter.
- Whether the challenged legislation infringed upon the right to
equality guaranteed by s. 15 of the Canadian Charter and the guarantee
against discrimination based on language in s. 10 of the Quebec Charter.
- If the challenged legislation infringes upon any of the said
sections of the Canadian Charter and Quebec Charter, whether the
infringement was justified under s. 1 of the Canadian Charter and s. 9.1
of the Quebec Charter.
DECISION:
The Supreme Court allowed Singer’s appeal in part (Estey and Le Dain
took no part in the judgment). The Court delivered one set of reasons in
which it concluded the following:
- The challenged legislation was within provincial jurisdiction.
- The challenged legislation was partially protected from the Canadian
Charter.
- Sections 57, 59, 60 and 61 and the Regulation infringed upon s. 2(b)
of the Canadian Charter. Said sections and ss. 52 and 58 of the Charter
of the French Language infringed upon s. 3 of the Quebec Charter.
- Because sections of the challenged legislation violated s. 2(b) of
the Canadian Charter, no decision on s. 15 is necessary. Sections 52 and
57 did not violate s. 10 of the Quebec Charter.
- Sections 59, 60, and 61 and the Regulation are not justifiable under
s. 1 of the Canadian Charter. Sections 58, 59, 60 and 61 and the
Regulation are not justifiable under s. 9.1 of the Quebec Charter.
Section 57 is justifiable under s. 1 of the Canadian Charter. Sections
52 and 57 are justifiable under s. 9.1 of the Quebec Charter.
DECISION REASONS:
“By the Court” (Dickson, Beetz, McIntyre, Lamer & Wilson)
Sections 3 and 52 of the Quebec Charter
The Court of Appeal had ruled that s. 3 of the Quebec Charter was not
applicable because, at the time of the judgment of the Superior Court, s.
52 of the Quebec Charter limited it to an interpretive role. The Supreme
Court disagreed with this reasoning. The Court asserted that a court of
appeal must decide upon the application of s. 3 consistent with the
situation that exists at the time of its judgment, not with the situation
that existed at the time of the judgment of a lower court. Hence, because
s. 3 did have precedence at the time of the Court of Appeal and Supreme
Court’s judgment, it was deemed applicable in this appeal.
Provincial Jurisdiction
The Court concluded that the province did have jurisdiction under the
Constitution Act, 1867 in regards to the challenged legislation. The
legislation had been challenged in this respect on three grounds: (1)
because it was concerned with a non-provincial objective, language, (2)
because it encroached upon criminal law, a federal objective, and (3)
because it represented a barrier to mobility (non-Francophones moving to
Quebec) in violation of s. 121 of the Constitution Act, 1867.
The Court found that a provincial law concerning language is consistent
with the Constitution Act, 1867 as long as it does not treat language as
an “independent” objective. As such, provincial legislation may concern
itself with language as an “ancillary” objective strongly related to
institutions and activities within provincial jurisdiction. The Court
asserted that the challenged legislation met this criteria as the purpose
of the legislation “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.” The Court pointed to the
preamble of the Charter of the French Language to support this assertion:
the preamble explicitly states the objective of making French the language
of business and commerce. By interpreting the challenged legislation in
this way, the Court chose not to concern itself with the effect of the
legislation: namely, the enhancement of the status of French.
The Court found that because s. 58 of the Charter of the French
Language (which mandated penal sanctions for non-compliance to the
legislation) pertained to a commercial regulatory scheme, within
provincial jurisdiction, it did not represent an encroachment upon federal
criminal law.
The Court argued that the challenged legislation did not constitute a
barrier to mobility in violation of s. 121. For the Court, the purpose of
the legislation was not to stop people from entering the province, but
simply to regulate the way in which business in the province was done.
The Canadian Charter
The Court concluded that ss. 52 and 58 of the Charter of the French
Language were protected from the Canadian Charter. This was so because
protection of said sections was invoked under s. 33 of the Canadian
Charter (the “notwithstanding” clause) in s. 52 of An Act to amend the
Charter of the French Language.
However, the Court concluded that ss. 57, 59, 60 and 61 of the Charter
of the French Language and the Regulations respecting the language of
commerce and business were not protected from the Canadian Charter. This
was so, because, while protection of said sections and the Regulations was
invoked under s. 33 of the Canadian Charter by s. 214 of the Charter of
the French Language, s. 214 ceased to have effect at the time of the
judgment.
Section 2(b) of the Canadian Charter and Section 3 of the Quebec
Charter
The Court concluded that ss. 57, 59, 60 and 61 of the Charter of the
French Language did violate freedom of expression under s. 2(b) of the
Canadian Charter. The Court asserted that freedom included both an absence
of compulsions as well as restraint. For the Court, ss. 57, 59, 60 and 61
restrained this freedom by compelling the use of the French language.
Similarly, these sections, plus ss. 52 and 58, violated freedom of
expression under s. 3 of the Quebec Charter.
Section 1 of the Canadian Charter and Section 9.1 of the Quebec Charter
The Court concluded that legislation that violated s. 2(b) of the Canadian
Charter and s. 3 of the Quebec Charter by compelling the use of French
only was not justifiable under s. 1 of the Canadian Charter or s. 9.1 of
the Quebec Charter. In contrast, legislation that only compelled the
predominant use of French represented a reasonable limit on freedom of
expression and, as such, was justifiable.
The Court concluded that s. 58 of the Charter of the French Language,
which compelled the exclusive use of the French language, was
unjustifiable under s. 9.1 of the Quebec Charter. Furthermore, the Court
argued that it was dealing with one scheme in the challenged legislation.
Therefore, all other sections related to s. 58 must also be struck down.
This included ss. 59, 60, 61 of said legislation as well as ss. 8, 9 and
12 to 19 of the Regulations respecting the language of commerce and
business. However, the Court concluded that ss. 52 and 57 were reasonable
limits as they allowed the joint use of French and non-French languages.
Similarly, the Court concluded that only s. 57 was justifiable under
the Canadian Charter. Section 52 was also technically justifiable;
however, because it was beyond review by the Canadian Charter, no judgment
was made.
Section 15 of the Canadian Charter and Section 10 of the Quebec Charter
The Court concluded that ss. 52 and 57 of the Charter of the French
Language do not infringe upon the guarantee against discrimination based
on language in s. 10 of the Quebec Charter. Section 10 is violated when
legislation “has the effect of nullifying or impairing the right to full
and equal recognition and exercise of a human right or freedom” (in this
case the freedom of expression enshrined in s. 3). However, the Court
found that, while ss. 52 and 57 created a distinction based on language,
it did not have the effect of impairing the recognition and exercise of
rights under s. 3. As stated above, the Court interpreted s. 3 as not
guaranteeing the right to express one’s self wholly in their language of
choice, but simply in their language of choice jointly with the French
language. Hence, because ss. 52 and 57 allowed such freedom of expression,
they do not discriminate in a manner that violates s. 10.
Furthermore, the Court concluded that a judgment on s. 15 of the
Canadian Charter was unnecessary. For the Court, the finding of
infringement of s. 2(b) was sufficient for the case at hand. Anyways, the
s. 1 conclusion in regards to s. 2(b) would also stand in regards to s.
15.
Outcome
The Court concluded that Singer’s appeal should be allowed in part. In
sum, the challenged legislation was within provincial jurisdiction and the
Canadian Charter was applicable to portions of the legislation. As such,
the challenged legislation violated s. 2(b) of the Canadian Charter and s.
3 of the Quebec Charter. Furthermore, sections of the legislation that
compelled expression in both French and non-French languages was
justifiable under both s. 1 of the Canadian Charter and s. 9.1 of the
Quebec Charter. However, sections that compelled the exclusive use of the
French language and all those sections related to them, were not
justifiable and, thus, unconstitutional. Hence, of the challenged
legislation, only ss. 52 and 57 of the Charter of the French Language were
left standing.
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