protection of minorities did not discharge that
burden. The Court also distinguished the
Committee’s Views of violation in Ballantyne et al.
v. Canada, noting that in that case a requirement for
exclusive use of French had been at issue.
appeal court, in order to discharge this burden of
proof (they had not adduced any below, because the
trial judge found that the State carried this onus, and
had not discharged it). The authors contend that the
appeal court wrongly believed they did not want to
adduce any evidence.
2.7 The application of the authors’ corporation for
special leave to appeal to the Supreme Court of
Canada was dismissed on 12 December 2002.
3.4 Finally, the authors argue that the State party
has failed to implement its Covenant obligations, in
breach of article 2, paragraphs 2 and 3, by the
insufficient coverage in domestic law of Covenant
obligations and the failure of the courts in the
present case appropriately to assess the complaint
from a Covenant perspective.
The complaint
3.1 The authors note, at the outset, that Québec’s
language laws have been considered by the
Committee in Ballantyne et al. v. Canada, McIntyre
v. Canada and Singer v. Canada.5 In Ballantyne et
al., the Committee found that provisions of the
Charter of the French Language which, at that time,
prohibited advertising in English, violated article 19,
paragraph 2, of the Covenant, but not articles 26 and
27. In Singer, the Committee found that amended
provisions, which required external advertising to be
in French, but which allowed inside advertising in
other languages in some circumstances, constituted a
violation of article 19, paragraph 2, in the case
(concerning external signage). The present “marked
predominance” provisions which the authors
challenge came into effect after the Singer case was
registered, but prior to the Committee’s Views. The
Committee there noted that it had not been asked to
consider whether the present provisions complied
with the Covenant, but concluded that they afforded
the author an effective remedy in the particular
circumstances of his case.
State party’s submission on admissibility and
authors’ comments
4.1 By submissions of 6 April 2004, the State
party contested the admissibility of the
communication. Firstly, the State party argues that a
corporation does not enjoy the rights protected by
the Covenant. It contends that the corporation “Les
Enterprises W.F.H. Ltée” was the entity prosecuted
and convicted for breach of the Charter of the French
Language. In Canadian law, a corporation is separate
from its shareholders, with legal personality.
Creditors of a corporation cannot recover debts from
a shareholder. Corporations are also differently taxed
from natural persons. The authors, therefore, cannot
domestically claim to be separate persons and
benefit from special rules applying to corporations
but, before the Committee, lift the corporate veil and
claim individual rights. The State party thus relies on
the Committee’s jurisprudence that where an author
of the communication was a corporation,6 or where
the victim of alleged violations was in fact the
individual’s corporation,7 the communication is
inadmissible.
3.2 The authors contend that their right to
freedom of expression under article 19, paragraph 2,
is infringed by the prescription of any particular
language in private commercial activity. They claim
that restrictions on use of language are not warranted
by the ‘necessity’ qualifier in article 19, paragraph 3,
and that the Supreme Court of Canada was wrong to
uphold any language restrictions as reasonable and
warranted. They also claim that the requirement to
use “markedly predominant” French in advertising
violates their right to equality under article 2,
paragraph 1; that it violates their right to freedom
from discrimination on the basis of language under
article 26; and that it violates their rights as members
of a national minority (the English speaking minority
in Québec) in accordance with article 27.
4.2 Secondly, the State party argues that even if
the Committee were to regard a corporation as being
able to enjoy some substantive Covenant rights, it
would not follow that a corporation would be able to
submit a communication. The Committee has
repeatedly held that only individuals, personally,
could submit a communication.8 In addition, the
Committee has held that domestic remedies had been
exhausted by the corporation, rather than the
author’s name. The same applies presently.
3.3 In relation to article 14, the authors claim that,
on appeal, the court found the authors had the onus
of proving that the special legislative measures to
protect the French language were not warranted and
justified under the Canadian Charter. The authors
allege that they offered to adduce evidence to the
5
6
A newspaper publishing company v. Trinidad and
Tobago. Case No. 360/1989, Decision adopted on
14 July 1989, and A publication and a printing company
v. Trinidad and Tobago. Case No. 361/1989, Decision
adopted on 14 July 1989.
7
S.M. v. Barbados. Case No. 502/1992, Decision
adopted on 31 March 1994, and Lamagna v. Australia.
Case No. 737/1997, Decision adopted on 7 April 1999.
8
359/1989, 385/1989, 455/1991.
47
Ibid.
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents