Is mandating private business owners to put some English on their signs a reasonable and proportional limit to their right to freedom of expression under Canada's Charter of Rights and Freedom?
This is the question that Richmond City Council would need to explore following extensive public consultation, according to a law firm that specializes in constitutional rights.
Monday, at a general council meeting, city councillors unanimously agreed to a resolution directing city staff to conduct broad public consultation, including consulting business owners and multicultural community groups, in addition to investigating the "effects foreign language signs have on community harmony."
To be justified in enacting a language-specific sign bylaw, the city would need to establish there is a "compelling or sufficiently important issue" to be remediated and that the proposed regulation is both "proportional to the issue to be remediated and only minimally impairs freedom of expression," according to lawyer Sandra Carter of the Valkyrie Law Group.
She said the Supreme Court of Canada would be more likely to restrict freedom of expression if the city engaged in public consultation to determine the scope of the issue, if there was one to be found.
"To be justifiable as a limit on a Charter freedom, the city would need to establish that compelling health, safety, economic and social welfare objectives are at stake," noted Carter in a letter to the city.
Furthermore, the city would need to prove, with a "strong factual basis," that resolving the problem could not be done without a bylaw.
As such, councillors agreed to investigate the issue more. Mayor Malcolm Brodie and Coun. Harold Steves expressed opinions that the city had not done enough to educate the public to date.
Phyllis Carlyle, the city’s manager of law and community safety, noted in a report that 31 — or about 3.5 per cent — of all new signs in the city over the last three years have been solely Chinese, while 15.8 per cent were mixed. Notably, the study didn’t indicate the size and context of the signs.
At issue are non-Chinese-speakers, including Chinese-Canadians, feeling like Richmond, or at least a large portion of north Richmond, is exclusionary.
“It’s much more than those 31 signs,” said Coun. Evelina Halsey-Brandt, who requested a motion last week at city council to investigate the legalities of enforcing some form of English (or French, presumably) on signs that fall under the existing sign regulation bylaw.
“It’s a social issue. There’s a segment of the population feeling disenfranchised,” she added.
Carter noted the city would need to have the regulatory authority to enact such a bylaw.
Carter noted there is no direct authority granted by the Community Charter (municipal constitution) to regulate content on signs. And according to a letter from MLA John Yap's office, dated March 2012, "there is no provincial laws regulating the inclusion or exclusion of languages on signs, including any part of the Local Government Act."
If reasonable measures are taken for a justifiable objective, Carter suggested case law may favour a language bylaw in Richmond.
Carter pointed to a recent case in Russell, Ontario whereby the Ontario Court of Appeal upheld a sign bylaw requiring both French and English, in some form, on signs.
A businessman wanting to put up English-only signs had challenged the township.
The court ruled the bylaw violated the man's Charter rights.
"Freedom of expression consists in the absence of compulsion as well as an absence of restraint," the court noted, citing the Supreme Court of Canada, according to the National Post.
However, the court also said the violation was justifiable under section one of the Charter, as the violation was a reasonable limit.
The court accepted expert opinions that that "the bylaw indicates that the French language has value in the community outside of schools and family life."
In other words, as Carter noted, the court ruled the bylaw addressed the social welfare of the township.
Carter said more analysis would be required to determine whether a B.C. court would reach the same conclusion.
She did not mention how Richmond's case is different in so much that the city is dealing with a non-official language.
Of course, these legal questions would only arise should they be challenged in court. The city could pass a bylaw requiring English or French on signs and theoretically have it go unchallenged.
But Brodie, a lawyer by practice, said he would anticipate a challenge.
Richmond already compels business owners to voluntarily address official languages on signage through its social development strategy, although Steves suggested this hasn’t been carried out on the ground.
The BC Civil Liberties Association said regulating signage on the basis of language would "constitute an unwarranted and unjustified encroachment upon the freedom of expression of Richmond residents and people doing business in the city."
The Richmond Chamber of Commerce asserted market forces should let the matter settle itself.