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Ontario Court of Appeal decision illogical
June 27, 2012
BELLEVILLE, ON, Jun 27, 2012/ Troy Media/ – The wish of some Ontario francophones to live in a fantasy world regarding the importance of the French language outweighs their neighbours’ Charter right to freedom of expression, according to the Ontario Court of Appeal.
Okay, okay – that’s not quite how the court put it. But that is nevertheless the essence of its recent decision in the case of Jean-Serge Brisson and Howard Galganov against Russell Township.
Four years ago, 70 per cent of the commercial signs outside businesses in Russell Township (a municipality of about 15,000 people near Ottawa) were bilingual. For a group of francophone zealots, 70 per cent wasn’t enough. They entreated town council to make bilingual signs mandatory for all businesses.
The proposal was highly controversial among both anglophones and francophones. Two local chambers of commerce opposed it. A committee struck by council recommended against it. Nevertheless, council passed the by-law by a 3-2 vote, requiring all new exterior commercial signs to be bilingual, with the dimension and style of lettering being identical in French and English.
Jean-Serge Brisson owns a radiator repair shop in Russell. Despite being fully bilingual, Brisson erected a non-compliant sign, with his business name solely in English and his services listed solely in French. Brisson then challenged the by-law, together with bilingual anglophone Howard Galganov who had posted a sign written entirely in English.
The two were slapped down by Justice Monique Metivier of the Superior Court of Justice in a 2010 judgment which I described in an article back then as ‘disturbingly illogical’. Unfortunately, last week’s decision from the Ontario Court of Appeal was not much better.
The Court of Appeal did at least correct one error made by the court below: it held that the bylaw violated citizens’ rights to freedom of expression under the Canadian Charter of Rights and Freedoms. Freedom of expression includes the right not to express oneself in a particular language. ‘Freedom consists in an absence of compulsion,’ they wrote, quoting the Supreme Court of Canada.
But then, astonishingly, they said the violation was justified under section 1 of the Charter – the section that allows governments to violate fundamental freedoms if the violations are ‘reasonable limits . . . demonstrably justified in a free and democratic society.’
The appellate court seemed completely hoodwinked by evidence that confused the behaviour of free citizens acting voluntarily with the behaviour of dragooned citizens acting under state coercion. For instance, the court accepted the expert opinion of a bureaucrat with the Eastern Ontario French School Board that ‘the by-law indicates that the French language has value in the community outside of schools and family life.’
Nonsense. When the francophones of Russell henceforth see business signs in both official languages, they will no longer know whether anyone inside can actually talk to them in French. They will no longer know whether the ‘bienvenu’ genuinely welcomes them or is merely an artifact of coercion forced upon an unwilling – and possibly resentful – anglophone or allophone. Anyone who accepts this as an indication that French is either valued by the sign’s proprietor or valuable in communicating with him is accepting an illusion – a fraud – manufactured by Russell’s town council. The inference that French is valued by businesses could not validly be drawn unless businesses chose voluntarily to use that language.
Another expert gave his opinion that the by-law is a ‘symbolic recognition of the equality of the French and English languages and cultures.’ Symbolic indeed. Symbolic and false.
The truth is – and the court had these facts before them – that the use of the French language at home in Eastern Ontario decreased from 23.8 per cent of the population in 1971 to a mere 15.6 per cent in 2006. If the francophone population themselves lack the motivation or wherewithal to keep their numbers up, why should other people be coerced into maintaining the illusion of parity for them? Is phony symbolism really an important enough objective to override a freedom so important to Canadians that it is enshrined in our constitution?
Also absent from the decision was any explanation of how the by-law, which would force Brisson to add English to his mostly French sign, achieves the goal of promoting or preserving the French language. Charter jurisprudence requires that section 1 overrides be rationally connected to their objective, but this connection can only be described as irrational.
The decision contains other leaps of illogic too numerous to discuss here. One can only hope that Brisson and Galganov will be able to mount an appeal to the Supreme Court of Canada (SCC), and that the SCC will place greater value on a constitutional freedom than on a charade designed to mollify some busybodies’ wounded pride.
Karen Selick is the litigation director for the Canadian Constitution Foundation, which intervened in this case to support freedom of expression.
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