Wednesday, 6 March 2013

Pastagate: Enforcement Discretion

Language is the third rail of Canadian politics, so it is with some trepidation that I wander out onto the tracks to muse on enforcement discretion in the wake of recent controversy about the Charter of the French Language and the Office québécois de la langue française.


"Pastagate" arose when the OQLF conducted an inspection on an Italian restaurant in Montréal and took exception to the use of the word "pasta", without translation, on one of its menus.

At the root of the issue here is s. 51 of the Charter:
Every inscription on a product, on its container or on its wrapping, or on a document or object supplied with it, including the directions for use and the warranty certificates, must be drafted in French. This rule applies also to menus and wine lists.
The French inscription may be accompanied with a translation or translations, but no inscription in another language may be given greater prominence than that in French.
This is quite clear. Having the word "pasta" on a menu, without a French translation, is a violation of s. 51. The idea is to safeguard the primacy of the French language in Québec.

The Charter also grants a power (in s. 54.1) to make exceptions by regulation to the strictures of s. 51. One of the exceptions contained in the relevant regulation refers to "the denomination of an exotic product or a foreign specialty". I suppose one could argue that pasta qualifies. However, given its ubiquity -- and the fact that one can even make it at home! -- this seems unlikely. 

Interestingly, the reaction of the OQLF was to describe pastagate as the result of overzealous enforcement. The responsible minister called for moderation and judgement in the application of the law. Essentially, OQLF employees are to exercise enforcement discretion.

As it happens, I am putting the finishing touches to an article on the relationship between administrative discretion and rights, such as freedom of expression. The following words of Justice Sopinka (albeit uttered in dissent) seem apposite: "avoidance of a Charter violation cannot be delegated to a prosecutor whose conduct is not circumscribed by guidelines which are enforceable in a court of law".

A situation like this, where OQLF employees are to act with "moderation" but the text of the law remains clear, is not fair either on the civil servants applying the law or the restaurateurs subject to it. No great harm would be done if the minister were to issue guidelines, or a code of best practice, which would indicate to civil servants and restaurateurs what sort of considerations a "moderate" OQLF inspector will take into account in exercising his or her discretion during spot checks. Calls for moderation and judgement are all but pointless without some actual guidance as to what the terms mean.

Moreover, if guidelines were published, they could function as a useful reference point for debate on the scope and application of the law. That, however, is probably wishful thinking, given the nature of the language debate. Creating such guidelines would probably require first grasping the third rail with both hands, an in appealing prospect.

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