Friday, February 3, 2012

Signs of Freedom

Entering a court building these days is not unlike boarding an airplane, similar security, but you get to keep your shoes on. It was the Ontario Court of Appeal at Osgoode Hall in Toronto, and Courtroom 10 was crowded with supporters of Jean-Serge Brisson and Howard Galganov.

We were there to listen to opposing lawyers slug it out orally in front of a tribunal of judges. At issue was the appeal of a business owner and his right to post a sign in the language of his choice, or, submit to a town bylaw that dictates language. The bylaw requires new signs to be bilingual French and English, with equal font size for both.

Mr. Brisson is the business owner with the new unilingual sign, and Mr. Galganov is a Quebecer and former talk show host, providing moral and financial support.

Lawyers for these appellants spoke first arguing that: "language is content," thus, dictating language, contravenes Section 2(b) of the Charter of Rights and Freedoms "freedom of thought, belief, opinion and expression." Furthermore, forcing business owners to have bilingual signs implies that two languages are spoken within the business, often not true.

Of course the broader question is, what are the responsibilities of the municipal (or any level) government to its citizenry? The lawyer for the Township of Russell that created this bylaw, argued that the protection of linguistic minorities is one of the major challenges of our time, and that municipalities should have the leeway to pass laws like this. Further, anyone who disagrees with such laws can rectify the situation at the next municipal election. The lawyer used the hackneyed argument that French is vulnerable in Canada, and without such legal protections Francophones will be assimilated. It's a weak argument, and not supported legally in Ontario.

But I thought the lawyer for Russell Township was the best presenter of the day. He used his voice and his mannerisms in an almost theatrical way to present his position. I hope the judges see past that, to his weak and sometimes humorous arguments. Humorous? For example, he argued that this hearing and the entire legal process is a financial burden on the municipality (no kidding), and that if this challenge to the bylaw stands, it will dissuade other municipalities from passing future bylaws for fear of challenges. Well, I glanced over at my colleagues in the courtroom and almost chuckled. Later one of them whispered to me "oh dear, how will they rule?" How indeed?

Do we really need laws for everything that politicians can conjure? The lawyer of course viewed the possibility of fewer bylaws as a negative, on the contrary, silly laws such as this one may be nullified by the threat of challenge.

Another young lawyer from the Canadian Constitution Foundation (CCF) that had intervener status at the hearing, made a brief presentation that got to the heart of the entire day. He asked why the Township wouldn't just allow free choice for business signs? The fact is, 71% of the signs in the town are already bilingual, no law was required, its just good business sense. Some 28% of the signs are unilingual English, and 1% are unilingual French, is that really a problem?

The lawyer for the Russell Township stressed that "deference" is owed to municipalities, and that freedom of expression is not jeopardized because you can say whatever you want on the signs, BUT, you must say it in two languages. No coercion there, right?

The decision of the court will be weeks or months off. Whatever happens it is likely this case goes to the Supreme Court of Canada. 

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