Moreover, the Committee has held that a corporation
owned by a single person did not have Optional
Protocol standing. Accordingly, the communication
is inadmissible for, in fact, being an impermissible
suit by a corporation.
argues that the Committee would short-circuit the
domestic process if it required Québec at the present
time to satisfy the Committee as to the
appropriateness of section 58 of the Charter of the
French Language before it had had the opportunity
to do so in the domestic courts.
4.3 Thirdly, the State party argues that domestic
remedies were not exhausted. The State party
argues that the Superior Court, on first appeal, held
contrary to the trial court’s view that it lay on the
party challenging the Charter of the French
Language to show by persuasive evidence that
there was no justification for the restrictions (rather
than lying on the Attorney-General to demonstrate
justification). The Court then afforded the parties
the opportunity to present new evidence, which
they declined. It also gave counsel for the authors’
corporation (also counsel before the Committee)
the right to present further evidence, if wished, at a
new trial. Counsel declined. After declining the
Superior Court’s invitation to supplement evidence,
counsel for the corporation unsuccessfully
attempted to do so in the Court of Appeal. The
Court of Appeal considered that the new evidence
had no bearing on the matter in issue as defined by
the appellant itself both in the lower courts and in
its appeal factum.
4.5 Fourthly, the State party argues that the
authors’ claims are not supported by, or do not
correspond to, rights protected under the Covenant.
As to the article 14 claim, the State party emphasizes
the Committee’s deference to factual and evidentiary
findings of domestic courts unless manifestly
arbitrary, amounting to a denial of justice or revealing
a clear breach of the judicial duty of impartiality. The
authors’ corporation never raised these issues, nor do
the arguments advanced support the allegations, as the
record demonstrates the courts’ anxiety to respect fair
process. This aspect is thus inadmissible under article
2 of the Optional Protocol, for having failed to
establish a violation of article 14 of the Covenant, or
under article 3 of the Optional Protocol, for
incompatibility with article 14.
4.6 As to the claim under article 19, the current
section 58 of the Charter of the French Language
evolved in response to the Committee’s earlier
Views and was presented in the State party’s fourth
periodic report. In its concluding observations, the
Committee offered no comment on this matter. The
authors have thus not established a violation of
article 19. As to the article 26 claim, the State party
refers to the Committee’s earlier Views finding no
breach of this article with respect to stricter
legislation and thus submits there can be no
violation. On article 27, the State party refers to the
Committee’s earlier Views that minorities within a
State, rather than a province of a State, are
implicated by this article which is thus not
presently applicable. Finally, article 2 is a corollary
right linked to a substantive right, thus not giving
rise to an individual claim. In any event, Canada’s
legislative and administrative measures, polices and
programs fully give effect to Covenant rights.
4.4 The State party emphasizes that counsel for
the corporation was an experienced lawyer
specializing in language law. Through counsel, the
corporation chose to limit its evidence and define
narrowly the legal question at issue before the
national courts. This legal strategy failed, and the
authors cannot now seek to revise the strategic
decisions made by their counsel.9 Now that the issue
of burden of proof has been resolved, there is
ongoing litigation in the domestic courts concerning
the constitutionality of section 58 of the Charter of
the French Language. In almost all of several dozen
cases, which were stayed pending the outcome of the
litigation in the instant case, the same counsel is
acting and has indicated to the Attorney-General of
Québec that he will be filing the evidence not filed in
the litigation on the instant case. On this question,
then, all appeal instances are open and a decision of
the Supreme Court will be necessary practically to
determine the respective rights of the parties, as well
as, in consequence, the rights of persons such as the
authors and their corporation. The State party thus
5.1 By letter of 27 June 2004, the authors’
responded disputing the State party’s submissions.
The authors, firstly, rely on the Committee’s
decision in Singer to reject any ground of
inadmissibility on the grounds of corporate rights. In
Singer, the Committee considered with reference to
the personal nature of freedom of expression that
author individually, and not only his company, was
personally affected by the Bills concerned. The only
domestic difference between the cases being that
Singer concerned a declaratory proceeding brought
by Singer’s corporation, while the present case
concerns a prosecution against the authors’
corporation, the authors invite the Committee to
apply Singer. The authors argue that they have the
freedom to impart information concerning their
9
The State party refers, by analogy, to the Committee’s
constant jurisprudence in the article 14 context: Lewis v.
Jamaica, Case No. 708/1996, adopted on 15 August 1997,
Morrison v. Jamaica, Case No. 635/1995, adopted on
16 September 1998, Perera v. Australia, Case No. 536/1993,
adopted on 28 March 1995, Leslie v. Jamaica,
Case No. 564/1993, adopted on 19 August 1998, Morrison
v. Jamaica, Case No. 611/1995, adopted on 19 August
1998.
48
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