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Overturning Precedent is (Still) Hard to Do

Overturning Precedent is (Still) Hard to Do

Just before the holidays, on December 20, 2017, the Court of Appeal rendered its decision in 156158 Canada inc. c. Attorney General of Canada, 2017 QCCA 2055. The appellants, 11 Montreal-area businesses charged with breaching provisions of the Charter of the French Language (“CFL”) and the Regulation defining the scope of the expression “markedly predominant” for the purposes of the Charter of the French language (“CFL Rules”) challenged the constitutionality of various provisions of the CFL and the CFL Rules relating to French language requirements in advertising, on packaging and on websites.

The essential issue before the Court was whether it should reconsider the Supreme Court’s decisions in Ford v. Quebec (Attorney General), [1988] 2 S.C.R. 712 and Devine v. Quebec (Attorney General), [1988] 2 SCR 790 as well as its own decision in Entreprises W.F.H. Ltée c. Quebec (Procureure générale ), 2001 CanLII 17598. In Ford and its companion case Devine, the Supreme Court struck down the regime requiring French-only advertising, but held that a requirement that French be predominant would be justifiable under section 1 of the Canadian Charter and section 9.1 of the Quebec Charter. In W.F.H., the Court of Appeal confirmed that s. 58 CFL was constitutional and consistent with Ford and Devine.

The appellants’ main argument was that the French language in Quebec is no longer in jeopardy and they led expert evidence to this effect. As such, relying on Bedford and Carter, two recent Supreme Court decisions where the Supreme Court revisited precedent because of changing social context, they argued that the factual underpinning of Ford and Devine could 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 recent decades, but, relying on its own expert evidence, it took the position that this was hardly enough to conclude that the French language was no longer in jeopardy. As such, it argued that the threshold for overturning Ford and Devine had not been reached and that those precedents were dispositive of the appellants’ arguments.

The Court of Quebec accepted the AGQ’s evidence and concluded that the appellants had not satisfied the threshold established in Bedford and Carter, namely a change in circumstances or evidence that “fundamentally shifts the parameters of 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 law alone” under section 291 C.P.P., the first question the Court of Appeal addressed was whether the trial judge’s findings regarding social and legislative facts raised a question of law. The Court clarified that, while evidence of a “fundamental shift” had to be “solid, compelling and unequivocal”, 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. Even in constitutional matters, an appellate court should not interfere with the trial judge’s findings on social and legislative facts absent palpable and overriding error.

The Court of Appeal found no palpable and overriding error in the trial judge’s factual conclusions and dismissed the remainder of the appellants’ legal arguments, without legal costs given the public interest nature of the debate.

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