[lg policy] Canada: The language police come to Ontario

[Harold Schiffman]

The Wittenberg Door
Trying to be faithful, Biblically

THIS is the problem with the Canadian Charter of Rights: “Reasonable
Limits” (a repost from the National Post)
Posted on June 20, 2012
“. . . and guess who gets to determine “reasonable!”
Karen Selick: The language police come to Ontario



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 last week’s decision
in the case of Jean-Serge Brisson and Howard Galganov against Russell
Township.

Four years ago, 70% 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% 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 Métivier of the Superior Court of
Justice in a 2010 judgment that 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 lower
court: It correctly 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 to the effect 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 “bienvenue” 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% of the population in 1971, to a mere 15.6% 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, and that the SCC will
place greater value on a constitutional freedom than on a charade
designed to mollify some busybodies’ wounded pride.

National Post

Karen Selick is the litigation director for the Canadian Constitution
Foundation, which intervened in this case to support freedom of
expression.

http://scottljacobsen.com/2012/06/20/this-is-the-problem-with-the-canadian-charter-of-rights-reasonable-limits-a-repost-from-the-national-post/

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