Overturning Precedent is (Still) Hard to Do156158 Canada inc. c. Attorney General of Quebec, 2017 QCCA 2055 (CanLII)
Just before the holidays, on December 20, 2017,the Court of Appeal rendered its decision in 156158Canada inc. c. Attorney General of Canada, 2017 QCCA 2055. Theappellants, 11 Montreal-area businesses charged with breaching provisions ofthe Charter of theFrench Language (“CFL”)and the Regulationdefining the scope of the expression “markedly predominant” for the purposes ofthe Charter of the French language (“CFL Rules”)challenged the constitutionality of various provisions of the CFL and the CFLRules relating to French language requirements in advertising, on packaging andon websites.
The essential issue before the Court was whether it should reconsider theSupreme Court’s decisions in Fordv. Quebec (Attorney General),  2 S.C.R. 712 and Devine v. Quebec (AttorneyGeneral),  2 SCR 790 as wellas its own decision in EntreprisesW.F.H. Ltée c. Quebec (Procureure générale ), 2001 CanLII 17598. In Ford and its companioncase Devine,the Supreme Court struck down the regime requiring French-only advertising, butheld that a requirement that French be predominant would be justifiable undersection 1 of the CanadianCharter and section 9.1 of the QuebecCharter. In W.F.H.,the Court of Appeal confirmed that s. 58 CFL was constitutional and consistentwith Fordand Devine.
The appellants’ main argument was that the French language in Quebec is nolonger in jeopardy and they led expert evidence to this effect. As such,relying on Bedford and Carter, two recent Supreme Court decisions wherethe Supreme Court revisited precedent because of changing social context, they arguedthat the factual underpinning of Fordand Devinecould no longer be used to justify the infringement of Charter rights.
The Attorney-General of Quebec (“AGQ”)did not deny that the French language had made modest progress in recentdecades, but, relying on its own expert evidence, it took the position thatthis was hardly enough to conclude that the French language was no longer injeopardy. As such, it argued that the threshold for overturning Ford and Devine had not beenreached and that those precedents were dispositive of the appellants’arguments.
The Court of Quebec accepted the AGQ’s evidence and concluded that theappellants had not satisfied the threshold established in Bedford and Carter, namely achange in circumstances or evidence that “fundamentally shifts the parametersof the debate”. The Superior Court confirmed the Court of Quebec’s decision.
Because leave to appeal could only have been granted on a “question of lawalone” under section 291 C.P.P., the first question the Court of Appealaddressed was whether the trial judge’s findings regarding social andlegislative facts raised a question of law. The Court clarified that, whileevidence of a “fundamental shift” had to be “solid, compelling andunequivocal”, the burden of proof was still that of balance of probabilities.It also confirmed that findings of social and legislative fact, while complex,are subject to the same standard of review as any other question of fact. Evenin constitutional matters, an appellate court should not interfere with thetrial judge’s findings on social and legislative facts absent palpable andoverriding error.
The Court of Appeal found no palpable and overriding error in the trial judge’sfactual conclusions and dismissed the remainder of the appellants’ legalarguments, without legal costs given the public interest nature of the debate.