THIS is the problem with the Canadian Charter of Rights: "Reasonable Limits" (a repost from the National Post)
“. . . and guess who gets to determine “reasonable!”
Karen Selick: The language police come to Ontario
Karen Selick Jun 20, 2012 – 7:00 AM ET | Last Updated: Jun 19, 2012 3:38 PM ET
Blair Gable/Reuters
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.
Thankfully, the Tide is Turning for Life | A National Post Re-post.
Kelly McParland: No court is too clogged to prevent the pursuit of an elderly woman and her abortion pamphlets
Kelly McParland Jun 15, 2012 – 9:43 AM ET
As a three-part series in the National Post demonstrated, the judicial system in Ontario is so clogged with backlogs and delays that it threatens to grind to a halt. But prosecutors are never so weighed down with work that they can’t find time to pursue another charge against 63-year-old grandmother Linda Gibbons for the crime of handing out pamphlets.
Gibbons has already spent nine years in jail over two decades and is before a judge once again, thanks to the zeal of the crown attorney’s office to stamp out elderly ladies and pamphlets. Ms. Gibbons’ crime is that her protest is against abortion, and she carries it out where women seeking to terminate a pregnancy can see her.
In Canada, your right to march through the streets, shaking your fist or offering Nazi salutes to the police will be upheld as a fundamental expression of free speech. You can agitate to join a Pride parade carrying a banner accusing Israel of being an apartheid state, and sympathetic “progressives” will argue on your behalf while municipal leaders look the other way. But stand on a public sidewalk near an abortion clinic, holding a poster with the image of a baby on it, and the forces of justice come down on you with both feet.
Ms. Gibbons lost a case before the Supreme Court last week in which she argued she shouldn’t face criminal charges for defying a civil order to stay away from abortion clinics. The crown decided to drop that case even though it won, since she’d already been in jail for six months. But she’s still awaiting a judgment on another case, for handing out pamphlets depicting fetuses.
Crown attorney Andrew Cappell told Judge William Wolski Thursday that Ms. Gibbons’ pamphlets were “disturbing” to clients of the clinic. It was also a “nuisance” and interfered with the clients’ right to get their abortion.
“By doing this in front of the clinic, it is intimidating people into not having these abortions performed … intimidating them into not executing a legal right that they have,” Mr. Cappell said.
Cigarette packages in Ontario carry graphic depictions of cancer that are also disturbing – in fact, they’re intended to be so, and anti-smoking organizations want to make them even more so. Cigarettes can be purchased at any variety store. And Toronto regularly creates a nuisance to people trying to go about their business. The city core is frequently jammed with marches, protests, demonstrations or charity run-a-thons and bike-a-thons that prevent non-participants from going conveniently about their tasks. The two main highways into the city are regularly closed so some group or other can raise some money. Everyone is OK with that, but to have Linda Gibbons hand out a pamphlet 30 feet from the door of a clinic is intolerable and has to be stopped.
Daniel Santoro, Ms. Gibbons lawyer, noted that her actions are peaceful, and no more intimidating than an animal rights advocate distributing photos of baby seals near a fur store.
“That’s a totally lawful course of action, and constitutionally protected. What’s the difference here?” he asked the court. “It may be disturbing, but she’s allowed to do that.”
“She is not locking the door, harassing the staff, shining bright lights in the windows to disrupt them … nothing she is doing is disturbing the function of the clinic. If she persuades someone not to go in, so be it,” Mr. Santoro said.
That’s not good enough for the Crown, though. Baby seals are evidently more worthy of protection than baby children. A woman’s right to an abortion is sacrosanct; another woman’s right to protest is a violation of the law. The case against Ms. Gibbons will proceed.
National Post