Morse’. On July 10 1997, the authors displayed a
sign outside their business.
2.4 On appeal, the Superior Court of the District
of Bedford, on 13 April 2000, reversed the decision
of the lower court. Through counsel, the authors’
corporation, believing that the burden of justification
lay with the Attorney-General, declined the Court’s
invitation to provide comprehensive evidence of why
the restrictions of section 58 were not justified. The
Superior Court considered, on its view of relevant
Supreme Court precedent of 1988,3 that it was up to
the challenging party to demonstrate that section
58’s limitations on freedom of expression were not
justified. Specifically, it would have to be shown
that the factors shown by the Supreme Court in the
1988 cases to justify a “marked predominance”
requirement for French no longer applied.4 The
authors’ corporation not having done so, it was
accordingly convicted and fined $500.
One side of the sign read:
“LA LIONNE ET LE MORSE
Antiquités
Hot Tubs & Saunas
Encadrement et cadeaux”
And on the other side:
“LYON AND THE WALRUS
Antiquities
Hot Tubs & Saunas
Gifts”
The sign was thus bilingual, except for the
words “Hot Tubs” found on both sides. All the other
words covered the same amount of space in each
language and had equal size letters.
2.5 On 29 March 2001, the Court of Appeal
rejected a motion of counsel for the authors’
corporation to file new evidence as to the linguistic
profile in Québec, considering that the evidence did
not relate to the dispute as defined by the authors’
corporation in the lower courts and on appeal. The
Court recorded that the Superior Court had
specifically invited the parties to submit new
evidence, whose clear position was to proceed on the
existing record. Furthermore, the Superior Court had
considered the parties’ positions unequivocal and
considered its equitable obligation to ensure neither
party was taken by surprise to be fulfilled.
2.2 The authors’ corporation was charged with
non-compliance with sections 581 and 2052 of the
Charter of the French Language, which require the
“marked predominance” of French on outdoor signs.
Although admitting the facts constituting the
offence, the authors claimed in their defence that
these provisions were invalid, because they infringed
their right to freedom of commercial expression and
right to equality both under the Canadian Charter of
Rights and Freedoms and the Québec Charter of
Human Rights and Freedoms.
2.3 On 20 October 1999, the Court of Québec
acquitted the authors’ corporation, accepting their
defence that the relevant provisions of the Charter of
the French Language were invalid. The Court
considered that the provisions violated the right to
freedom of expression protected both in the
Canadian Charter of Rights and Freedoms (section
2 (b)) and the Québec Charter of Rights and
Freedoms (section 3), and that the Attorney-General
of Québec had not demonstrated the restrictions to
be reasonable.
2.6 On 24 October 2001, the Québec Court of
Appeal dismissed the substantive appeals of the
authors’ corporation. The Court of Appeal
considered that the formulation of section 58 in 1993
had reflected previous comments by the Supreme
Court of Canada that requiring a “marked
predominance” of French would be constitutionally
acceptable in view of Québec’s linguistic profile.
The onus thus fell on the authors to show that there
was no longer sufficient justification for what had at
that point been considered acceptable restrictions. In
the Court’s view, the authors’ arguments linguistic
duality, multiculturalism, federalism, democracy,
constitutionalism and the rule of law and the
1
Section 58 provides: “Public signs and posters and
commercial advertising must be in French. They may also
be both in French and in another language provided that
French is markedly predominant. However, the
Government may determine, by regulation, the places,
cases, conditions or circumstances where public signs
must be in French only, where French need not be
predominant or where such signs, posters and advertising
may be in another language only.”
3
Ford v. Québec (Attorney-General) [1988] 2 SCR
712 and Devine v. Québec (Attorney-General) [1988] 2
SCR 790.
4
The Supreme Court identified the following factors in
the above cases by way of justification: (a) the declining
birth rate of Québec francophone resulting in a decline in
the Québec francophone proportion of the Canadian
population as a whole, (b) the decline of the francophone
population outside Québec as a result of assimilation,
(c) the greater rate of assimilation of immigrants by the
Anglophone community of Québec, and (d) the continuing
dominance of English at the higher levels of the economic
sector.
2
Section 205 provides: “Every person who contravenes
a provision of this Act or the regulations adopted by the
Government thereunder commits an offence and is liable:
(a) for each offence, to a fine of $250 to $700 in the
case of a natural person, and to $500 to $1,400 in the case
of an artificial person;
(b) for any subsequent conviction, to a fine of $500 to
$700 in the case of a natural person, and of $1,000 to
$7,000 in the case of an artificial person.
46
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