Bill 86

In December 1988, Bill 178 was adopted by the Québec government after the Supreme Court found provisions of BILL 101, those regarding commercial signs and advertising, contrary to the guarantee of freedom of expression in the CHARTER OF RIGHTS AND FREEDOMS. The government then had to use the notwithstanding power under this same Charter, making it clear that Bill 178 did not comply with the Charter's provisions. This power was, however, limited as the Charter required that the legislation be re-examined at the end of a 5-year period. In fact, Bill 86, a new Act to amend Bill 101, was assented to 6 months before the December deadline, but it came into force only at that time.

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Two important developments had taken place before the bill was introduced in May 1993. On 31 March the Conseil de la langue française reported on 5 questions the minister responsible for the Charter, Claude Ryan, had addressed at the end of 1992. Issues included the use of pictographs or symbols instead of languages other than French on highway signs, French-language certificates required from small businesses and the bilingual status of municipalities with a minority or reduced non-Francophone population. The most important of the issues examined, however, were the rules of access to English schools and the language of commercial signs.

Regarding access to instruction in English, no radical change was proposed to Bill 101, as it had been limited by the Supreme Court's 1984 ruling regarding the non-applicability of the Québec clause (see BILL 101 CASE). Concerning commercial signs, the Conseil suggested that private businesses be allowed to use languages other than French, conditionally to two-thirds of the space being taken up by French, but large corporations should use French only.

The adoption of Bill 178, by using the notwithstanding clause under the Charter of Rights and Freedoms, led to complaints by a Quebecker, Gordon McIntyre, to the Human Rights Committee of the United Nations. In April 1993 the Committee made public an opinion that Bill 178 violated Article 19 of the International Covenant on Civil and Political Rights in which a state, beyond the sphere of its own public action, may not restrict the freedom of expression in a language of one's choice. In response to other parts of McIntyre's complaint, the Committee did not consider that linguistic minorities' right to use their own language between themselves (Article 27 of the Covenant) was challenged since "English-speaking citizens of Canada cannot be considered a linguistic minority." Moreover, in the Committee's opinion, the right to equality (Article 26) was not jeopardized as restrictions about commercial signs applied equally to all Québec's residents.

Minister Claude Ryan took into account the Conseil's report and the Committee's opinion in preparing a new bill to be introduced on 6 May 1993. Premier Robert Bourassa stated that the government's intention was to respect the objectives of Bill 101 while looking for a new balance that would protect French-speaking Québec in English-speaking North America and comply with the Charter of Rights and Freedoms.

As a result, Bill 86 was broader in scope than Bill 178. It enacted changes to section 73 of the Charter that would slightly ease access to English-speaking schools for children whose parents or siblings had been instructed in English. It also modified the institutional apparatus responsible for the Charter: the Commission de protection de la langue française was abolished and merged into the Office de la langue française. Sections 135 to 150 of the Charter, which dealt with programmes to promote the French language and committees to monitor language use in the work place, were revised to simplify the procedure. The essentials, however, were not compromised: "firms employing 100 or more persons must form a language committee composed of 6 persons or more." The committee must analyse the language situation in the firm, and report to the Office. If the Office "considers that the use of French is not generalized at all levels of the firm," the firm "must adopt a language programme" to correct the situation.

With Bill 86, section 7 of the Charter still asserted that "French is the language of the legislature and the courts in Québec," but it specified that legislative bills and regulations will be adopted both in French and in English and that "either French or English may be used by any person in... any court of Québec." Finally, on commercial signs, the Charter was simplified and modified to incorporate earlier decisions or opinions on Bill 101 and on Bill 178. The revised section 58 states: "Public signs and posters and commercial advertising must be in French. They may also be both in French and in another language provided that French is markedly predominant."

These modifications made the bill constitutionally acceptable as it now complied with the Charter of Rights and Freedoms. But the changes satisfied neither radical nationalists, who oppose the watering down of provincial laws aimed at promoting the use of the French language, nor anglophones who oppose the use of French only in Québec public life. Alliance Quebec, representing English-speaking Quebeckers, organized public demonstrations to protest Québec's language policies. A majority of the French-speaking population, however, appears to support the current language policies.

Author R. HUDON

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