2010 Karen Selick
An edited version of this article first appeared in the October 8, 2010 issue of The Lawyers Weekly.
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Should Be Free to Not
Does freedom of expression include the right not to express yourself? Or can Francophones doing business in Ontario be forced by law to communicate with potential customers in English? A recent decision of the Superior Court of Ontario seems to answer these questions “No” and “Yes” respectively.
The applicant Jean-Serge Brisson owns a radiator repair shop in a small eastern Ontario town. He speaks both of Canada’s official languages fluently, so when he ordered a new sign for his shop, he chose to put his business name in English, with a description of his services in French.
But shortly before, the municipality of Russell Township, where Brisson lives and works, had passed a bylaw requiring all new exterior commercial signs to be bilingual, with identical style and content in both French and English, except for the business name. Brisson’s sign did not comply because of the French-only list of services.
On YouTube videos, Brisson looks like an unlikely crusader—mild-mannered and unobtrusive. But when he learned that his municipality intended to coerce him into expressing himself with words not of his choosing, he decided to challenge the bylaw in court. Meanwhile, a mirror image challenge had been brought Howard Galganov, a bilingual Anglophone who had posted a sign written entirely in English. The two actions were heard together.
The decision, Galganov v. Russell Township 2010 ONSC 4566, held that the by-law does not violate anyone’s right to freedom of expression under section 2(b) of the Charter even though it compels individuals to communicate against their will in two—and only two—specified languages.
The decision also affects the local immigrant population since the bylaw appears to prohibit businesses from communicating with potential customers by signs in, for instance, Italian or Chinese.
But wait a second—wasn’t this all settled by the Supreme Court of Canada 22 years ago? In Ford v. Quebec  2 S.C.R. 712, the court said, “…there cannot be true freedom of expression by means of language if one is prohibited from using the language of one's choice.” But the Galganov decision doesn’t even refer to Ford case.
Brisson and Galganov plan to take their case to the Ontario Court of Appeal. That’s no surprise, because in addition to ignoring a seminal case on freedom of expression and language, Madam Justice Monique Métivier’s decision also contained questionable rulings on such diverse issues as public interest standing, the admissibility of expert evidence, and the limits of municipal government power.
Several of the municipality’s arguments dubbed “persuasive” by Justice Métivier are disturbingly illogical. For instance, the bylaw’s purpose was to counteract the accelerating assimilation of Russell’s French-speaking population into the surrounding “anglicizing sea” by making French more visible. But Mr. Brisson wanted most of his sign to be exclusively French. How could forcing him to express himself in English possibly contribute to the goal of promoting French?
Or there’s this. An expert witness for the municipality argued that the presence or absence of French on signage could be construed as an indicator of the vitality of the French language in the community. Perhaps—but you can’t put the cart before the horse. A community where French is thriving will voluntarily erect a profusion of French signs. However, a crop of French signs displayed under threat of penalty does not indicate a thriving Francophone environment. In fact, it indicates precisely the opposite, and anyone who believes otherwise is just kidding himself.
The municipality then argued that seeing French on signs would deliver the message to Francophones that maintaining their language is useful. But that message is a fake, an illusion, if French appears on signs strictly as a result of compulsion. When a Francophone enters a store expecting to be served in French, only to discover that the storekeeper speaks nothing but English and Hindustani, he’ll quickly realize that the apparent usefulness of his language is a mere façade. Why raise his hopes and then dash them?
Could language busybodies be hoping, as their next trick, to transform their illusion into reality by forcing business owners to actually speak to customers in both official languages inside their shops?
Already, all hell has broken loose in the region over this bylaw. Residents say a fierce animosity has sprung up between linguistic groups, replacing the harmony that prevailed for over a century. People now speak guardedly in the presence of friends with whom they formerly felt free and open. People on both sides are boycotting merchants who have taken the opposite stand.
Many residents are outraged at the legal fees the municipality has already racked up—some $284,000—defending a bylaw that was highly contentious from the moment it was first proposed.
Justice Métivier’s decision contains only a skeletal history of the bylaw’s passage, making it sound as though it breezed through with equanimity from citizens. Russell residents tell a different story, pointing out that municipal council ignored the recommendations of its own specially appointed committee and of two local Chambers of Commerce. Residents also allege the public meetings were manipulated so that only one side of the debate got aired.
In the neighbouring municipality of Clarence-Rockland, feelings ran so high during the debate of an identical by-law that, according to local lawyer and newspaper editor Stéphane J. Lalonde, “By-Law officers had barricaded City Hall and prohibited citizens opposed to the By-Law (especially Anglophones) the entrance to the Council Chambers for the debate.”
The upcoming municipal election in Russell Township is being fought almost exclusively on the subject of this sign bylaw, with some candidates running on a platform of repealing it. By the time the case reaches the Court of Appeal, the issue may be moot in Russell Township itself. But three other Ontario municipalities have adopted similar by-laws and Moncton, New Brunswick is also engaged in a divisive debate on the subject.
The question of whether freedom of expression also includes the right not to express yourself in the language of somebody else’s choosing is begging to be heard by a higher court.
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November 28, 2010