CHAPTER 6 A sickening display o

Canada must end because even its Supreme Court -- an allegedly objective institution that is supposed to be guided by the rule of law -- appeases Quebec nationalists.

Can you provide an example of what you claim is appeasement by Canada’s Supreme Court?

The Court’s December 15, 1988 decision on the language of commercial signs provisions of Bill 101 is the best example.

In the grand scheme of things, the language that store owners put on their signs is, for me, not nearly as important as Bill 101’s language of education, francization, and official language provisions. However, the sign law, as it is popularly known, is the law’s most symbolic part, impacts important rights and freedoms, and its treatment by the Supreme Court leaves a lot to be desired.

The decision comprised two cases. In both, Quebec merchants challenged those provisions of Bill 101, designed to achieve a French-only visage linguistique, that required businesses to post unilingual French signs and have unilingual French names. In Devine,[66] merchants claimed the right to post unilingual English signs. In Ford,[67] merchants wanted the right to post signs in another language alongside French.

The Court ruled that, on the face of it, legislation requiring a particular language on commercial signs infringed upon freedom of expression guarantees in the Quebec and Canadian charters of rights and equality guarantees in the Quebec charter. However, the Court also found that legislating the requirement of French -- even its “marked predominance” -- while not disallowing other languages was a reasonable limit to those freedoms. The Ford merchants, therefore, won their case in full and the Devine merchants only partially.

That sounds like a reasonable compromise to me.

It wasn’t.

Of all the possibilities that could have been sanctioned by the Court, “marked predominance” was far from a liberal, unfettered construction. Indeed, “marked predominance” is one notch below “unilingual French only” that the Court could have approved.

Why was this so wrong?

The Court gave into temptation and strayed from the path of liberal interpretation that tradition and the rule of law demanded when dealing with individual rights and freedoms. The Court realized that the sign language case would be historic in its implications and that the fate of Canadian Confederation could very well be reflected in its outcome. Could the aspirations of the quebecois to preserve and promote their distinct position in the so-called Sea of English surrounding La Belle Province be realized within the Canadian context? Could these aspirations be reconciled with the concept of individual rights?

Sounds to me like the Court was trying to do a good thing.

The road to hell is paved with good intentions. However good or bad the judgment, Canada’s Supreme Court had no business sticking its nose where it didn’t belong by venturing into areas outside its mandate. Such is the stuff of politics, not law.

Where did they stray?

The Court erred when applying something called the reasonable limit test to the proceedings under section one of the Canadian Charter of Rights and Freedoms. This is the section which provides the conditions under which limits to the Charter’s rights and freedoms are allowed.

Up until that point the written judgment provided a powerful and rational argument. The Court answered in the affirmative that:

1) freedom of expression includes the freedom to express oneself in the language of one’s choice;[68] and

2) freedom of expression extends to commercial expression.[69]

The Court then applied something called the reasonable limit test. Several hurdles had to be overcome in order to justify a limit on the rights and freedoms that the Court concluded Bill 101 had violated.

The test comprises four hurdles:

My disappointment was in how the Court handled two of the four hurdles.

What is your first objection?

That a market solution wasn’t sanctioned. This bears upon the third hurdle: that the restrictions in the sign law “must impair the right as little as possible.”

The marketplace is defined by full freedom of choice: put up a commercial sign in unilingual English if you dare in a province comprising 80% Francophones and suffer the consequences of consumers taking their dollars to a competitor who provides better service (i.e., who does have French on his signs).

Freedom of choice in language of commercial signs is the least restrictive means that there is. "Marked predominance" or any requirement that French be put on signs is, obviously, more restrictive than freedom of choice as a “means” that can be employed to achieve the goal.

In other words, all policies must yield to the policy which successfully achieves the goal while, at the same time, minimizes -- or, ideally, doesn’t allow for any -- impairment of the freedom or right.

An example: legislation that prohibits shouting “fire” in a crowded theatre is a reasonable limit to freedom of speech. Legislation that prohibits all talking in crowded theatres is not a reasonable limit because such legislation goes beyond what is necessary to achieve the goal pursued (preventing stampeding in crowded theaters) and must yield to that policy that minimizes the violation of the freedom.

Had the Court stuck to its mandate, kept its nose out of politics, and applied this “test” properly, it would have had to conclude that freedom as policy works better than anything, even what, at first glance, appeared to be a reasonable limit.

But freedom of choice had already been tried in Quebec because up until the first language legislation of the early 1970s, freedom of choice was the policy…and it never worked because English dominated on signs in Quebec.

Let’s dispel the myth of a widespread domination of English signs in Quebec prior to the language legislation of the 1970s. According to author Marc Levine:

By my calculations that means that 53.2% of the rest of the signs were bilingual, presumably French and English. If correct, that means that over 88% of all signs according to the study included French. Hardly an overbearing imposition of English.

Tell me how full freedom of choice in language of commercial signs will achieve the goal of a French visage linguistique.

Freedom of choice underlies the basic tenet of our free market system. A buyer and seller come together to freely transact an exchange of goods or services at a mutually satisfactory price with neither party being forced against his will to buy or sell. What influences the buyer to buy? Favorable price, product quality, etc.

What influences the seller in his selling behavior? First and foremost, he wants to maximize profit. This is accomplished by: providing a quality product and good service at competitive prices and responding to the needs of his client.

Buyer and seller must both perform in order for the dynamics of the marketplace to work; it is a symbiotic relationship. If the buyer does not perform his role properly, the marketplace will respond accordingly. A buyer who continues to purchase shoddy product and service deprives the seller of incentive to provide better quality and price. Similarly, if the seller doesn’t perform adequately customers will stop buying.

However, one side of the equation of freedom of choice -- the buyer -- never participated fully in his role. Perhaps because of certain cultural and behavioral quirks imposed on him by the church and government elite of the day, the Quebec Francophone refrained from asserting himself in a manner that the marketplace requires of individuals. Meek and unassertive. Intimidated by the English shop owner.

Suppose that a unilingual English businessman opens up a store in the East end of Montreal, erects a unilingual English sign and refuses to provide service in French to his mostly French clientele. From a strictly business point of view, can such behavior possible be regarded as good service? Certainly not! And the dynamics of the marketplace -- in which good service, good product, and good price are rewarded with increased revenue -- would select against such unacceptable business behavior. However, if I, as a buyer, continue to patronize bad business products, bad business establishments and bad service, I condone and encourage all of these inefficient business practices.

In such situations, the dynamics of the marketplace demand only one sensible course of action. Instead of the francophone client burying his humiliation at not receiving proper service in the form of French commercial signs and proceeding with his purchase, he should, on the spot, refuse the purchase (and thereby deprive the seller of greatly desired profit), make known to the proprietor his reasons, and take his business elsewhere.

I would challenge the soundness and the social responsibility of any individual who continued to patronize an establishment that offered him unsatisfactory service. The international language of profit is more than an adequate incentive to encourage a Quebec businessperson to provide commercial service in French than any forced rule or regulation requiring French on signs. But if it is not effectively communicated to a businessperson why he or she is not providing efficient service, the dynamics of the marketplace -- the policy of freedom of choice in language of commercial expression -- will have been frustrated.

In early 2007, Esso service stations in Quebec started to change their names from the French “Marché Express” to the English “On the Run.“ Although legal by then to do so, the policy was abandoned by Esso due to pressure from organizations defending the French language. As the Montreal Gazette’s Don MacPherson observed in his aptly titled column “Marketplace doing better job of protecting French than government”:

In another excellent example of the marketplace at work the Mouvement Montréal français’ and Impératif français urged shoppers, during the 2007 Christmas season, to only patronize those merchants who provided overtly French services.[73]

By such actions, what these groups do is demonstrate how unnecessary any sign or francization laws are. Bill 101’s French requirements were upheld in the Ford decision because they were considered reasonable limits to freedom of expression. However, as we’ve seen, the rules governing those limits are very clear: if a less restrictive means for achieving the goal are available, the more restrictive ones -- such as “marked predominance” -- must fall away.

These protesters demonstrate quite clearly what those “less restrictive means” are: the power of the marketplace in achieving the goal. Get vocal. Tell your fellow consumers: don’t shop in an establishment if the service is substandard. No law requiring French is as powerful or successful. Therefore, the more restrictive means -- the provisions of Bill 101requiring French on signs -- are demonstrably unnecessary.

As observed on the angryfrenchguy.com blog:

Maintaining a French visage linguistique is more than just cultural deference to a majority collectivity…it’s good business.

The Ford decision appears to have hurt francophone Quebecers more than it did Anglophones.

I agree. The judgment placed Francophones in a passive position; nothing has to be done by the individual, everything is already decided by some higher power. The passivity that characterizes both the Supreme Court’s “marked predominance” ruling and Bill 101’s “French only” requirement confirms to the francophone that he doesn’t have to participate on an individual basis to preserve and promote what the nationalist elite claims is an endangered culture and language.

What is your other objection to the Ford decision?

The Court quite correctly stated that expressing oneself in the language of one’s choice is within the definition of freedom of expression:

One’s choice of language, therefore, falls under the protected freedoms of both the Quebec and Canadian charters of rights, which places it under the control of individuals, not governments and their legislation. As Pierre Trudeau said:

The charters therefore tell us that individuals and the languages they choose to speak are all equal before and under the law. The hundreds of languages spoken within the boundaries of the province of Quebec are on equal footing. And this equality means that no one language can receive preferential treatment over another.

But French is the official language of Quebec. Doesn’t that put it ahead of other languages when considering things such as signs?

No. Despite Bill 101’s attempt to make French the common language, another law of Quebec, found in its own charter of rights, is very clear: all languages spoken within the province are equal. And, by law, the Quebec Charter of Human Rights and Freedoms takes precedence over all other laws in Quebec, including Bill 101.[77] Indeed, in the Ford decision, the Supreme Court found Bill 101’s language of commercial signs in violation of the Quebec charter of rights equality clause and not Canada’s precisely because “language” is a prohibited basis of discrimination only in Quebec’s charter and not in Canada‘s.

The status of French as an official language pertains only to government services and the language in which the government is required to provide those services, such as the language of the legislature, the courts, tax services, schools, etc. If anything, we can say that because government is so all-encompassing in this day and age and its fingers in so many different areas of our lives, having French as an official language means that it necessarily spills out into non-governmental and private areas, thus receiving an unfair advantage over all other languages. As such, French should be at the bottom of the list whenever consideration is being given to which languages should receive special treatment in non-governmental and private areas, such as commercial signs, common language, communications, commerce, etc.

If the Supreme Court is truly concerned about the status of a language in which the numbers of its speakers represents a “pressing and substantial concern”, it needs to look beyond the White, European based cultures and languages to which it always seem eager to give special dispensation.

According to a group of Indian chiefs from Manitoba, there are fifty-five aboriginal languages spoken in Canada -- fifty-two of which are now on the brink of extinction.[78] Most have only a few hundred speakers left; others a few dozen; many only 5 or 6 speakers remaining. Each of those fifty-two is what can truly be described as being in a fragile and threatened state.

Contrast this with over 6 million French-speakers in Quebec. French has the added benefit of having official language status for both federal and provincial services. Public education is available in the French language everywhere in Quebec, is free, and receives public funding. The language of the courts, the government and countless institutions are, by law, available in French.

I would hazard to guess that the total number of speakers of Canada’s fifty-five aboriginal languages don’t even reach one percent of the seven million French speakers found across Canada.

To claim that French is in danger is not only absurd on its face but exposes a mean-spirited, exclusionary, intolerant worldview that ignores the plight of non-White, non-European based languages and cultures. Such an attitude is sanctioned and enabled by the Court when it declared:

The Court sings from the Old Boys’ Network: you will only have our sympathy and support if you speak a language from a group descended from either of the English or French-speaking mother countries with rich histories of colonialism and cultural imperialism.

The rest of you be damned.

It is, of course, a White European colonialist perspective, one that glaringly declares: if you are part of the English/French old boys’ club, we’ll protect you, give you special status and bend over backwards to ensure that fundamental human rights are limited in order to placate you. But if you’re non-White, non-European, you’re inferior and not worthy of protection.

Thus, within the context of equality of all languages spoken within its borders, to suggest that French in Quebec is somehow in danger is, at the least, irrational, and, at the most, absurd.

Commenting on “how utterly ridiculous” it was for the Bill 101-created Office Quebecois de la langue francais to be forcing a town to put French stickers on air conditioners, Steve Bonspiel, a member of the Kahnawake Indian community located just outside of Montreal, opined:

The we’re surrounded by a sea of English constantly screamed from the rooftops by Quebec’s language supremacists as one of the justifications for their language laws is a statistical red herring. As members of the very same White European Descendants’ Club as those on the Supreme Court, these language fanatics look the other way when it is pointed out to them that non-white, non-European cultures and languages also exist in equality in Quebec. The sea surrounding each and every aboriginal language is a much greater and harsher body of water than the one invoked by Quebec’s attorney-general when posturing his fallacious arguments before the Old Boy’s Network that is Canada’s Supreme Court, who swallow such absurdity hook, line, and sinker.

Let’s be honest about it, shall we? The French language is no better than any others and to bestow the special consideration that the Supreme Court is so intent upon according it is most definitely a policy and worldview seeped in racism.

The only possible explanation for giving French special consideration, as the Court did with its “marked predominance” decision, had nothing whatsoever to do with the letter of the law and everything to do with a misguided attempt to play politics and appease Quebec nationalism so that Quebec doesn’t separate and break up the country.

We have enough politicians in the House of Commons. We don’t need nine more sitting on that other bench.

Of course, the whole exercise was rendered futile by the invocation by Robert Bourassa’s use of the “notwithstanding” clause a few days after the Ford decision came down. So the Court’s attempt to accommodate and show Quebec how supposedly tolerant and open they were to the Quebec nationalists’ aspirations was all for naught.

And the big loser? Quebec Francophones who didn’t benefit from a judgment that would have respected them as individuals, free to use the marketplace to influence the course of events but, rather, derisively and condescendingly looked down upon them as passive slaves of an elite political and academic class who insist upon making all free speech and commercial decisions for them.