Décision

Quebec (Attorney General) c. 156158 Canada Inc. (Boulangerie Maxie's)   JM 2240     Charter of the French Language. Markedly predominant. Trade-marks. Freedom of expression. Equality. Liberty. Vulnerability of the French language. Judicial notice.							2015 QCCQ 354
COURT OF QUEBEC
CANADA
PROVINCE OF QUEBEC
DISTRICT OF					MONTREAL
TOWN OF				MONTREAL
Criminal Division
No:			500-61-090188-989 & Al. (See Annex)
DATE:		January 28, 2015
______________________________________________________________________
BY	THE HONOURABLE					SALVATORE MASCIA, J.C.Q.
______________________________________________________________________
ATTORNEY GENERAL OF QUEBEC
Plaintiff
v.
156158 CANADA INC. (BOULANGERIE MAXIE’S) & AL.[1]
Defendants-Petitioners
______________________________________________________________________
JUDGMENT
______________________________________________________________________

 

Introduction

 

[1]           The defendants are all Anglophone merchants who operate their businesses in or around the Montreal area. They are charged with having violated various provisions of the Charter of the French Language (hereinafter referred to as CFL) that prohibit or restrict the use of a language other than French on public signs, posters, advertising, brochures and packaging.

[2]           The nature of the violations to the CFL is best described by grouping them into four different categories :

1.          Bilingual outdoor signs (French-English) that failed to respect the marked predominance of the French language (s. 58 of the CFL). In essence, the fault of the defendants lay in posting a sign wherein the space allotted to the English text was equal to the space allotted to the French text.  For the Attorney General of Quebec, marked predominance at section 58 of the CFL requires that the French text on a sign be at least twice the size of the characters or space allotted the text printed in the other language.[2]

2.          Commercial signs written in a language other than French (s. 58 of the CFL). Here, the merchants were at fault for having commercial signs written only in English.

3.          The inscriptions on a product, on its container or on its wrapping, or a document supplied with it were not in French or did not have a French equivalent (s. 51 of the CFL).

4.          Catalogues, brochures, folders, commercial directories and any similar publications that were not drawn up in French (s. 52 of the CLF): Here, the fault of the merchants lay in promoting their goods and services on the internet exclusively in English.[3]

Issues before the Court and the arguments of the parties

 

—On the merits of the case

[3]           On the merits of the case, the following issues were argued before the Court:

—Interpretation of the expression «markedly predominant»

[4]           A group of defendants claimed that their outdoor bilingual sign (French-English) fully complied with s. 58 of the CFL even though the space allotted to both languages was equal. For them, « marked predominance » was established by the mere fact that the French portion of the sign always came before the English portion.[4] For the prosecution, of course, «marked predominance» had to comply with the two-for-one rule set out in the Regulation defining the scope of the expression «marked predominance».

 

—Exemption for a recognized trade-mark

[5]           Certain defendants claimed that the offending portion of their commercial sign(s) benefited from the statutory exemption pertaining to trade-marks.[5] The prosecution, for its part, argued that the evidence failed to establish the existence of a valid trade-mark. To buttress this argument, the prosecution pointed to s. 64 of the Code of Penal Procedure which holds that «it is incumbent upon the defendant to establish that he has the benefit of an exception, exemption, excuse or justification provided for by law.»

—De minimis non curat lex (the law does not care for, or take notice of, very small or trifling matters )[6]

[6]           For the defendants, the violations were trivial even in light of the legitimate objectives of the CFL to promote and protect the French language. With respect to the s. 51 charges, for instance, the defendants argued that a few items in a store that were not labelled or packaged in French could not possibly violate the spirit of the law nor could those few mislabelled items constitute a danger to the survival of the French language.

[7]           A de minimus defence was also raised to counter the s. 58 violations. In essence, the defendants argued that the bilingual signs affording equal space to both French and English complied with the spirit of the law. For instance, on the said bilingual signs, priority was given to the French language by the mere fact that it appears before the English portion of the sign. For one sign in particular, it was argued that the equal space allotted to both languages was offset by the fact that the descriptor of the business was written only in French. Moreover, the French descriptor was by far the most obvious and most visible of the inscriptions that appeared on that sign.[7]

[8]           For the defendants, the infractions were trivial and certainly did not constitute an affront to the preservation of the French language. Under such circumstances, their prosecution for «signs violations » was described as petty and mean-spirited.

—Failure to give adequate notice:   

[9]           The defendants argued that the intent of the legislator was not to punish merchants but to assist them in complying with the dictates of the CFL. They claimed, however, that the notices of default sent to them contained little if any details regarding the nature of the alleged breaches. Likewise, the notices contained no information or guidance on how the merchants could remedy the situation. In the absence of the afore-mentioned details, penal proceedings were not justified.

 

—Constitutional issues and arguments

 

[10]        The defendants also contested the charges on constitutional grounds. The said challenge had two facets: The first was jurisdictional in nature and applied only to the defendants who posted in English (without a French equivalent) on their business internet websites. More particularly, it was argued that the Federal government alone—by virtue of the residual power set out at sections 91 and 92(10) of the Constitution Act, 1867—had the power to regulate the internet. As the Quebec government had no business regulating the internet, it did not have the authority to institute penal proceedings against merchants who posted in English only on their websites.

[11]        The second facet of the constitutional challenge was rights related. More particularly, the defendants claimed that the restrictions or obligations imposed by the CFL at sections 51, 52 and 58 infringed upon their fundamental rights and freedoms as guaranteed by both the Canadian Charter of Rights and Freedoms and the Quebec Charter of Human Rights and Freedoms. In a nutshell the rights and freedoms alleged to have been violated were the following :

1.          Freedom of expression as guaranteed by s. 2(b) of the Canadian Charter and s. 3 of the Quebec Charter;

2.          Right to equality as guaranteed by s. 15 of the Canadian Charter and s. 10 of the Quebec Charter;

3,          Right to liberty guaranteed by s. 7 of the Canadian Charter and s. 1 of the Quebec Charter (right to freedom).

[12]        Because constitutional issues were raised, notice was given to the Attorney General of Quebec who, in turn, dutifully intervened to argue the government’s position on the constitutional questions raised by the defendants-petitioners.

[13]        On the issue of jurisdiction, the Attorney General argued that the pith and substance of the CFL was to regulate commerce inside the province of Quebec. The true character of the legislation was not altered simply because the medium used by the merchants to offer their goods or services involved the internet rather than a traditional paper catalogue.

[14]        On the issue of alleged rights violations, the Attorney General argued that they were justified under the saving provisions of s. 1 of the Canadian Charter and s. 9.1 of the Quebec Charter. Briefly stated, the argument held that the preservation and enhancement of the French language was a sufficiently important governmental objective to justify limiting the constitutional guarantee of freedom of expression on commercial signs.

[15]        The Attorney General noted, moreover, that the Supreme Court of Canada has already ruled on the very same issues before this Court.[8] In Ford, the Supreme Court declared sections 58 and 69 of the CFL unconstitutional on the grounds that they constituted an unreasonable limitation on freedom of expression protected under s. 2(b) of the Canadian Charter and s. 3 of the Quebec Charter. While the Supreme Court agreed that the signs legislation had a legitimate purpose—the protection of the French language—it held that the total ban of signs in a language other than French went too far. In short, the impugned sections of the law failed to meet the minimal impairment test set out in the Court's seminal decision in Oakes.[9]

[16]        No doubt sensitive to the importance of the language issue in Quebec, the Supreme Court proposed, in obiter, an alternative measure that would satisfy the goal of protecting the French language and meet the minimal impairment test of Oakes. The Court suggested that the Quebec government could legitimately require that French have a greater visibility or «marked predominance» on commercial signs; however, it could not ban the use of a language other than French on the said signs.

[17]        In Devine—the companion case to Ford—the principle issue concerned whether or not the government could impose the joint use of French in commercial advertising—such as catalogues, brochures, invoices and employment forms—in addition to the language of choice of the merchant. As was the case in Ford, the Supreme Court ruled that the impugned sections of the legislation violated freedom of expression as guaranteed by both the Canadian Charter and the Quebec Charter. Unlike Ford, however, the impugned sections of the CFL in Devine did not prohibit the use of a language other than French but permitted the concurrent use of another language along with French. The distinction was crucial: To demand exclusive usage—as was the case in Ford, was unconstitutional. But to require (or to allow) joint use passes the scrutiny required by s. 1 of the Canadian Charter and s. 9.1 of the Quebec Charter, as such a measure is proportional and rational in light of the governmental objective to protect the French language.

[18]        In 1993, the Quebec government modified s. 58 of the CFL. It relaxed the original provision that called for the total ban of commercial signs other than French and allowed bilingual (or multilingual signs) provided that French was «markedly predominant».

[19]        For the Attorney General, the said modification merely complied with the alternate measure suggested by the Supreme Court in Ford and Devine. As the Supreme Court has already stated that the marked predominance of French on commercial signs constitutes an acceptable limit on Charter freedoms, the defendants in the present matter have no case to present.

[20]        Though the policy measure suggested by the Court in Ford and Devine was in the form of an obiter dictum, it still had the authority of binding precedent. To this effect, the Attorney General relied on the decisions of the Superior Court and the Court of Appeal in Les Entreprises W.F.H. Ltée.[10] In essence, both decision confirmed that s 58 of the CFL (as amended to allow for the marked predominance of the French language on bilingual or multilingual signs) was constitutional and consistent with the decisions of the Supreme Court in Ford and Devine.

[21]        For the Attorney General, the authority of the afore-mentioned cases settled all the Charter issues before the Court—not just freedom of speech but also those rights guaranteeing equality and liberty. Recalling the principle of stare decisis, the Attorney General stressed that this Court was bound by the said decisions.

[22]        If all the issues were effectively decided, why are we taking up valuable Court time with the same questions? For Mr. Brent Tyler—the attorney of the petitioners-defendants—a new round of Charter challenges is justified on the premise that the French language in Quebec is no longer in jeopardy. In 1988, the Supreme Court's decisions in Ford and Devine were predicated upon evidence showing that the French language in Quebec was vulnerable. Thus, the Supreme Court ruled that the legislation imposing the mandatory use of the French language on commercial signs or advertising was rationally connected to the objective of ensuring the enhancement and protection of the language. However, in the Quebec of 2014, the survival of the French language is no longer threatened. Hence, the factual underpinnings of the Ford and Devine cases cannot be used to justify the infringement of Charter rights in 2014.

[23]        In support of the argument that French is no longer vulnerable, Mr Tyler highlighted the following points.

—The French share of linguistic transfers among Allophones is increasing

[24]        Prior to the language legislation in 1977, the vast majority of immigrants adopted the language of the English minority. In recent decades, however, the trend among immigrants from third language groups (those whose mother tongue is neither French nor English) is to adopt the French language. In a report prepared by Mr Calvin Veltman—a sociologist and expert in demo-linguistics retained by Mr Tyler—52.8% of Allophones[11] spoke French as a second language at home as opposed to 30.6% who spoke English as a second language in the home in 2011. When all variables are factored in, the French share of future linguistic transfers amongst Allophones will rise to 61%.

[25]        In time (usually two to three generations), these Allophones will be assimilated into the Francophone majority and thus ensure the continued viability of the French language. The language pessimists, claimed Mr Veltman, are simply not patient enough.

—Stability in the French speaking population of Quebec

[26]        In terms of relative weight, the portion of Quebec's French speaking population has remained stable in the past few decades—more or less 81 %. In terms of absolute numbers, the number of French-speakers for the period covering the years 1971 to 2011 increased from 4 734 965  to 6 344 785—a net gain of 1 609 820. With numbers like this, argued Mr. Tyler, one cannot seriously argue that the French language in Quebec is in jeopardy.

—Decline in the English speaking population (both in terms of relative weight and in absolute numbers)

[27]        Not without importance, the same data indicates that the number of English speakers in the province of Quebec has dwindled significantly in the past few decades. In 1971, the 863 155 English speakers in Quebec represented circa 14.7 % of the total population. In 2011, the English speakers numbered 834 950 and represented but 10.69% of the total population—a drop of 28 205 in absolute numbers and a decline of four percentage points in terms of relative weight.[12]

—The status of the French language in Canada as a whole

[28]        Data regarding the dwindling percentage of French-speakers in Canada was also addressed by Mr. Tyler and put in perspective. In essence, he highlighted the fact that a drop in the relative number of French speakers from 1951 to 2001 was of little concern given that the same period also saw a sizeable increase of French speakers in terms of absolute numbers. In Canada as a whole, the French speaking population declined in relative weight from 29% to 22.9%, yet there was an increase of 2.8 million (from 4 million to 6.8 million) for that same period. If Quebec is excluded from the equation, the relative weight of French-speakers in Canada shrank from 7.3% to 4.4%, but increased by 260 000 (from 720 000 to 980 000). With numbers like these, argued Mr. Tyler, one could not possibly raise the spectre of assimilation.

[29]        It was argued, moreover, that the declining number of French speakers in Canada is of little concern to the issues before the Court. As Mr. Tyler explained in his written notes: «The relevant geographical unit of analysis for the purposes of the saving provisions is Quebec. The impugned provisions have no effect beyond the territory of Quebec—thus, the fact that the French speaking population of Canada declined from 1951 to 2001 in relative terms is wholly irrelevant.[13]»

—The Supreme Court judgements in Ford and Devine were based on incomplete data

[30]        The arguments of Mr Tyler go further than the mere assertion that the situation of the French language has evolved significantly since the decisions of Ford and Devine in 1988. In fact, he asserts that even the socio-demographic documents relied upon by the Court to render its decisions in the said cases were incomplete and manifestly out-of-date. Firstly, the studies predated the Quiet Revolution. Secondly, the Supreme Court did not have the benefit of consulting important population studies contained in the seminal work of Rejean Lachapelle and Jacques Henripin, La situation demolinguistique au Canada: Évolution passée et perspective, L’Institut de recherches politiques, 1980.[14] Mr Tyler was bold enough to suggest that had the work of these authors been filed into evidence before the Supreme Court in 1988, it would not have concluded that the French language was vulnerable to the point that it justified the infringement of Charter rights. 

—The positive effects of Quebec’s language legislation in the francization of Allophones 

[31]        Credit for the increased rate in which Allophones have gravitated to the French language is given to the language legislation that spawned the signs legislation. However, the positive gains were not explained by the signs provisions of the law (described by Mr Veltman as superficial and mere marketing). Instead, it was argued that the only the provisions of the law that impose real life choices among Allophones—such as the mandatory French instruction for their children and the obligation to learn French for employment—are the basic reasons for the linguistic shift towards French.

[32]        Regarding the positive aspects garnered by the mandatory French education of immigrant children, Mr Veltman noted at page 16 of his report :

Depuis l’adoption de la Loi 101, la langue d’enseignement structure l’apprentissage des allophones. Il n’est pas surprenant de voir la forte poussée de la francisation à partir de l’année 2001, étant donné que les premiers enfants de la Loi 101 s’affranchissaient de la maison parentale et pouvaient dorénavant déclarer leur propre pratique linguistique.[15]

[33]        Regarding employment opportunities and the manner in which it favoured the French language among Allophones, Mr Veltman made the following observations :

[L]a Loi 101, agit, également sur la structure linguistique du marché du travail. Certains des émigrés anglophones et allophones anglicisés ont sans doute trouvé qu’ils n’avaient pas les compétences linguistiques nécessaires pour intégrer le marché québécois de l’emploi. D’autres données sur la mobilité linguistique montrent qu’en 2011, 23.8% des allophones anglicisés parlaient le français comme langue seconde chez eux alors que seulement 13.6% des allophones francisés parlaient l’anglais comme langue seconde. On peut conclure que l’impératif d’apprendre et d’apprivoiser le français est plus important que celui d’en faire autant avec l’anglais.[16]

—Overlapping jurisdictions of the federal government and the provinces in immigration matters

[34]        The extensive immigration agreements between Quebec and Ottawa have also had a positive influence on the status of the French language.[17] Since the Couture-Cullen agreement 1978, Quebec has favoured Francophone immigrants or Francophiles inclined to integrate into the language and culture of the majority.[18]

—The shrinking portion of French speakers on the island of Montreal is no cause for alarm

[35]        The language pessimists—a term used by Mr Veltman to denote the attitude of experts who raise the spectre of linguistic and cultural assimilation—point to the decline in the number of French speakers on the island of Montreal as proof-positive that the  French language is in jeopardy. For Mr Veltman, however, the island of Montreal cannot constitute the proper unit of analysis to gauge the status of the French language. In his report, he writes that we are lucky that Montreal is surrounded by water. Unlike Toronto or Chicago where one travels from neighbourhood to neighbourhood seamlessly, Montreal has a natural geographic barrier. The greater Montreal area, however, includes the tens of thousands of French-speakers who live off island and who commute to Montreal for work, study or entertainment. Our bridges, noted Mr Veltman are choked with the traffic of busy commuters making their way in or out of the island of Montreal. By focusing only on the island of Montreal, the language pessimists are oblivious to the phenomenon of urban sprawl. Consequently, their dire forecast—based on the shrinking pool of French speakers on the island—is inevitably skewed as it fails to include the great number of Francophones who have moved to the off-island communities.

[36]        Moreover, the shrinking portion of French speakers on the island of Montreal does not imply a proportional increase of English speakers. Commenting on the tables produced by the expert for the Attorney General, Mr Veltman pointed out that for 2001 the English speaking population of Montreal represented but 24.6% of the population. Just as important, the Anglophone population of the island was predicted to drop to a mere 21% - 22% by the year 2026.

[37]         The shrinking number of French speakers on the island of Montreal is simply explained by the growing number of Allophones who chose to settle in the area. Moreover, the growing number of Allophones on the island does not represent a threat to the French language. The real competition to the French language, explained Mr Veltman, is the English language. As linguistic shifts among Allophones now favours French over English, the viability of the French language is not in jeopardy.

—No rational connection between the language of signs and the protection of the French language

[38]         In his Charter challenge to the signs legislation, Mr. Tyler also argued that there was no rational connection between the language of signs and the protection of the French language. Instead, the major factors influencing the linguistic composition of a society and the linguistic choices of its members are fertility and mortality rates along with immigration, language of instruction and employment opportunities. Mr Tyler quipped that people don’t choose to have children and they certainly don’t die any sooner based on the language of signs; nor do immigrants move to Quebec on the basis of sign laws. Mr Veltman dismissed the importance of sign law legislation by claiming that it was nothing more than mere marketing. Moreover, he knew of no study that established a relationship between the language of signs and demo-linguistic factors.

[39]        As the language of signs has no bearing on demo-linguistic factors, it follows that even if the vulnerability of the language is presumed for the purposes of discussion, the impugned provisions infringe rights for no discernible purpose, and therefore, they cannot be saved.[19]

—The response of the Attorney General

[40]        In response to the afore-mentioned arguments, the Attorney General did not deny that the French language has made some progress in recent decades. The progress, however, was described as modest (not to say marginal) and hardly enough to say that the French language was no longer in jeopardy and in need of protection.

—Modest number of linguistic transfers in favour of French

[41]        The Attorney General downplayed the significance of the linguistic transfers among Allophones as described in both the oral testimony and written report of Mr Veltman. For instance, at table 3 of Mr Veltman’s report one reads that for the year 2011, there were 172 499 linguistic transfers in favour of French among foreign born Allophones. Admittedly, an improvement over the 14 595 linguistic transfers in favour of French back in 1971. However, when one considers the total population of Quebec, circa 8 000 000 people, the improved 2011 figures represent but a marginal gain—and hardly enough to claim that the French language is no longer vulnerable.

[42]          On the topic of linguistic transfers, Mr Marc Termote—a demographer who testified on behalf of the Attorney General—noted that the slow rate of linguistic transfers provided but modest gains for the French language. Commenting on table 7 that appears in Mr Veltman’s report, Mr Termote highlighted the fact that between 2006 and 2011 the number of linguistic transfers in favour of French only grew by 10 025 people (from 182 110 to 192 135). On a yearly basis, it works out to roughly 2 000 language transfers per year. Hardly a figure to allay the fears that French is no longer in jeopardy. The figure is further marginalized when one considers that the total Allophone population for Quebec in 2011 numbered 636 215 people.

—Disproportionate number of linguistic transfers in favour of English

[43]        Not without concern, the number of linguistic transfers among Allophones is not proportional to the relative weight of the French speaking population of Quebec. For instance, from the 42% of Allophones who switched language allegiance in 2006, the French share of the linguistic transfers was but marginally higher than the English share, 52% and 48% respectively.[20] In practical terms, it means that English—though it represents but 11% of the population of Quebec—garners almost 50% of the linguistic transfers. Meanwhile, the French language—representing 81% of the population—attracts just a little more than half of the linguistic transfers. The disproportionate distribution of linguistic transfers attests to the appeal among Allophones for the English language while providing evidence that the French language is far from secure.

—Declining fertility rates among French speakers and the high fertility rate of third language groups

[44]          Mr Termote also pointed out that the greatest gains in Quebec’s population growth were made by the third language groups. From 2001 to 2011, the French-speaking population grew at a yearly rate of 1%. For the same period, the Anglophone population grew at a yearly rate of 1.4%.[21] The number of Allophones, however, grew at the impressive rate of 5% per year. This growth is explained by both the high fertility rates among Allophones (slightly more than five births per woman) and the growing number of immigrants that settle in the province—between 50 000 to 55 000 per year.

[45]        Prior to the 1960’s, a high fertility rate allowed the French speaking population to keep increasing in numbers. As late as 1959, there were more than four births per women in the Francophone group.[22] Twenty years later—which amounts to less than one generation—the fertility rate of Francophone women fell to 1.5.[23] The fertility rate amongst English speakers was slightly higher at 1.6. These numbers are well below the replacement rate of 2.1 needed for population stability. Worse still, the low birth rate among French speakers cannot compensate for the significant rate of growth in the Allophone population. A higher fertility rate among Allophones coupled with an influx of 50 000 to 55 000 new immigrants every year means that the French share of the population will continue to decline.

[46]        The decline in the relative weight of the French-speaking population is even noted in the tables produced by Mr. Veltman. From 2001 to 2011, the French-speaking portion of the population dropped from 83% to 81.9%.

—Declining proportion of French-speakers on the island of Montreal

[47]        While the decline in the relative weight of French-speakers in the province was relatively modest (a shade over 1%), the drop of French speakers on the island of Montreal was important. The French share of the population of Montreal went from 61.2% in 1971 to 56.3% in 2001 and dropped further still to 53% in 2011.[24] As a mother tongue, French was spoken by a minority of the Montreal population (48.5%) in 2011.[25] In what concerns French as a language of primary use (langue d’usage), Mr Termote predicts that it’s well on its way to minority status.[26]

[48]        Mr Termote was not oblivious to the phenomenon of urban sprawl in explaining the decline of French-speakers on the island of Montreal. Admittedly, if one includes the greater Montreal area, the figures are largely in favour of the French language. The problem, however, lies in defining what constitutes the greater Montreal area. The phenomenon of urban sprawl, by definition, encompasses an ever increasing number of communities outside the island. By limiting the analysis to the island of Montreal, one has the advantage of studying population movements in a fixed area.

[49]        What is more, urban sprawl is not the only reason for the declining number of French-speakers on the island of Montreal. An equally important factor, explained Mr Termote, is the declining fertility rates of French-speakers coupled with the high fertility rate of third language speakers. From 2001 to 2006, the fertility rate for a Francophone woman living in Montreal was 1.17 and slightly higher at 1.29 for an Anglophone woman.[27] In contrast, the Allophone birth rate for the same period was slightly more than 5.

[50]        Finally, on the subject of urban sprawl, Mr. Termote remarked that more and more Allophones are settling in the off-island communities. Consequently, even a population analysis that includes the greater Montreal area would show a steady increase in the number of third language speakers and a relative decrease in French-speakers.

—Critique of Mr. Veltman’s methodology who, unlike Mr. Termote, diminishes the importance of third language groups in assessing the vulnerability of the French language

[51]        Much of Mr Termote’s analysis focused on third language speakers. In a nut-shell the Allophone population—spurred on by a high fertility rate and by an influx of new immigrants—will continue to increase. The marginal number of linguistic transfers to the French language coupled with a declining birth rate among French speakers cannot compensate for the increasing number of Allophones. Inevitably, the French-speaking population of Quebec will decline.

[52]        For Mr Termote, the population analysis of Mr Veltman was fundamentally flawed as it failed to take into account the growing number of third language speakers in assessing the vulnerability of the French language. Mr Veltman, one will recall, stated that the French language was only in competition with English. In time, members of third language groups will gravitate to one group or the other. Given the increased share of linguistic transfers in favour of French, the viability of the language is assured. In a detailed written critique of Mr Veltman’s approach, Mr Termotte explained why the linguistic issues in Quebec cannot be boiled down to a simple competition between French and English :

Même si l’on acceptait que « la mobilisation linguistique croissante du groupe allophone vers le français » est une « tendance lourde », même si l’on supposait que toutes les personnes de langue maternelle tierce finiront un jour ou l’autre par adopter la langue officielle du Québec, ce qui n’est pas du tout le cas (toutes les études portant sur les transferts linguistiques en fonction de l’âge montrent que très peu de personnes abandonnent leur langue maternelle après l’âge de 30 ans, qui est l’âge moyen des  immigrants à leur arrivée et qu’il faut le plus souvent attendre une ou deux générations), même selon un tel scénario, le groupe allophone serait loin de disparaître, bien au contraire. En effet, pendant tout le temps que prend cette intégration linguistique, tous les phénomènes démographiques, et particulièrement la sous-fécondité des francophones et l’immigration internationale (ainsi que l’étalement urbain dans le cas de Montréal), continuent à exercer leur impact, qui est bien plus important que celui engendré par la mobilité linguistique vers le français du petit nombre de personnes qui abandonnent leur langue maternelle[28].

—Stare decisis and the burden of proof (analysis of the W.F.H. decision)

[53]        In assessing the relative merits or weight of the evidence, the Attorney General reminded the Court that the burden of proof lies with the petitioners. As mentioned earlier, the decisions of the Supreme Court in Ford and Devine as well as the decisions of the Quebec Superior Court and the Quebec Court of Appeal in W.F.H. have already decided the very same issues. Thus, the Court cannot re-examine the constitutional validity of the said sections unless the petitioners present convincing and compelling evidence—accepted by experts in the field—that the status of the French language in Quebec has dramatically changed to the point that it is no longer vulnerable and that it no longer needs the protection of the law.

[54]        The burden imposed on the petitioners in the signs debate was first described and justified by justice Bellavance in W.F.H. In his judgement, he noted that the decisions in Ford and Devine were predicated on evidence establishing the vulnerability of the French language. Based on the evidence, the Supreme Court suggested a modification to the legislation that would meet the governmental objective of protecting the French language while minimally infringing on Charter rights. As the vulnerability of the French language was firmly established in Ford and Devine, why should the Quebec government have to reprove its case every time a defendant contested the signs provisions of the CFL? Instead, the burden should be on the petitioner who wants to renew the debate. Moreover, when it comes to reviewing the precedent set by Ford and Devine, the bar is set very high. In the words of Justice Bellavance, the evidence must be «strong, persuasive, solid and convincing».[29]

[55]        Justice Bellavance added that the burden fulfilled two objectives. Firstly, it assured a certain stability in the law while allowing for a review of the Ford and Devine decisions on the condition that the context changes in a significant manner.[30]

[56]        Equally important, the policy suggestion of the Supreme Court regarding the language of signs—the marked predominance of French on bilingual or multilingual signs—was intended to provide a long-term solution to the difficult and often divisive  language debate in Quebec. As Justice Bellavance explained at page 30 of his judgement :

Plutôt que de répondre simplement non à la question à savoir si la loi pouvait être sauvegardée par l’article premier, la Cour suprême, pour, de toute évidence, éviter qu’on ne revienne à nouveau devant elle avec des contestations sur des mesures moins drastiques que l’interdiction totale d’une autre langue que le français, a décidé dans un obiter dicutm (…) fait sans réserve et après une analyse poussée du problème, d’indiquer au législateur, futur, la limite où il peut aller.

[57]        Similarly, at page 35 of his decision, Justice Bellavance remarked that the policy suggestion of the Supreme Court was made for the long haul and not for a few months only :

Avec égards pour l’opinion contraire, sous réserve d’une preuve démontrant des changements dans les faits, la décision de la Cour suprême dans Ford n’était pas une décision avec un effet de six mois ou un an seulement; c’était une décision avec un effet qu’on voulait pour un bon bout de temps.

[58]        As the burden of proof lies with the petitioner who wishes to renew the Charter challenge to the signs law, the Attorney General has no obligation to «refresh its evidence».

[59]        The Court of Appeal agreed entirely with the reasoning given by Justice Bellavance on the issue of burden of proof. At paragraphs  60 and 61 of the decision,  Justice Biron, on behalf of a unanimous court, wrote that :

Tenant pour acquis que l'art. 58 restreint la liberté d'expression, le juge de la Cour supérieure a conclu qu'il appartenait à l'appelante de démontrer, par sa propre preuve, que les principes de Ford ne s'appliquaient plus.  Je suis d'avis qu'il a raison. L'arrêt Ford a établi des lignes directrices et le législateur les a pour ainsi dire codifiées en 1993, satisfaisant ainsi au fardeau de preuve imposé par l'article premier de la Charte canadienne  et par l'art. 9 de la Charte québécoise.

L'appelante avait donc le fardeau d'établir que la situation révélée par les documents considérés par la Cour suprême en 1988 était modifiée au point que la mesure ne pouvait plus se justifier en 1999. Elle a fait une certaine preuve qui n'a pas été retenue par le juge de la Cour supérieure.  Elle a décliné l'invitation qui lui avait été faite de faire une preuve complète, estimant que le fardeau reposait toujours sur les épaules de la procureure générale.  Elle a voulu le faire en Cour d'appel, mais la permission lui a été refusée pour la raison déjà indiquée. C'est dans  ce cadre qu'il y a lieu d'examiner les griefs de l'appelante.

[60]        The Attorney General adapted the analysis of Justice Bellavance to the cases at bar and argued that this Court had no justifiable reason to side-step the conclusions of the Supreme Court in Ford and Devine. The evidence does not support the view that the status of French in 2014 is radically different from what it was in 1988 when the Supreme Court rendered its decisions in Ford and Devine. The documentary evidence before the Supreme Court in 1988 established that French was vulnerable. Aside for a few modest gains, French still remains vulnerable today. Hence, as the passage of time has not altered the factual underpinnings of the Ford and Devine decisions, the conclusions arrived in the said cases are binding and cannot be disturbed.

—Judicial notice that the French language in vulnerable

[61]        In his written notes, the Attorney General stated that it would be difficult if not impossible for the defendants-petitioners to prove that French was no longer vulnerable in North America.[31] In his oral arguments, the vulnerability of the French language was presented as an obvious fact if only on account of the power and influence of the English language in North America. After quoting from the Ford decision the historical  factors that favoured the use of English in Quebec, the Attorney General stated :

C’est là qu’on voit la force d’attractivité de l’anglais, la force naturelle, ce dont il a déjà été question devant vous. Ce qui fait qu’en d’autres termes, si on laisse les forces naturelles jouer en l’absence d’une intervention législative, la même situation est susceptible de se reproduire parce que la langue française est toujours vulnérable et a toujours besoin de mesures législatives de protections, comme elle en avait besoin en 1988 lorsque la Cour suprême a examiné la question.[32]

[62]        In the course of this hearing, the Attorney General made some passing remarks to the effect that the vulnerability of the French language is obvious and hardly disputable. Though the Attorney General never formally asked the Court to take judicial notice of the vulnerability of the French language, the invitation to do so was implied.

Analysis on the merits of the Case

—The facts

[63]        There are thirty different files before the Court. On the merits of the case, it is not necessary for this Court to set out in detail the nature of the alleged violations. The accusations speak for themselves: commercial signs that were not in the official language (s. 58); bilingual commercial signs where French was not given marked predominance (s. 58); packaging where French was not afforded equal space (s. 51); postings on a commercial internet website that had no French equivalent (s. 52).

[64]        Generally speaking, the facts were not contested by the defence. For most of the defendants, a positive outcome will hinge upon the success of the constitutional challenges presented on their behalf by Mr. Tyler. For some, however, the facts—though not contested—lent themselves to an interpretation that may constitute a defence on the merits of the case. For instance, there was a debate on whether or not a bilingual French-English outdoor sign respected the CFL’s criteria of marked predominance as the French version of the sign was placed first.

[65]         Similarly, there was a debate as to whether or not the visual impact of a bilingual sign projected the marked predominance of French—even though the goods or services advertised by the said sign allocated equal space to both French and English. This was the case for «Boulangerie Maxie’s»: the bilingual sign advertising the various goods or services offered by the establishment afforded equal space to both languages. However, the most visible inscription at the top of the store’s entrance read «Boulangerie » followed by the name of the bakery writ large—«Maxie’s». There was no English equivalent to the word Boulangerie (Bakery) on the store front.[33]   For Mr Tyler, the visual impact of the sign—where the word «Boulangerie» was the most evident—respected the spirit of the law.

[66]        On the merits of the case, none of the accused merchants testified. The facts were read into the record; various letters of default were filed along with photographs attesting to the nature of the violations. Based on the facts presented (mostly by admission), Mr. Tyler presented a series of common law defences.

[67]         In the event that the proposed common law defences failed to raise a reasonable doubt, Mr. Tyler challenged the charges against his clients on constitutional grounds. In what could be described as the second phase of the trial, Mr. Tyler presented evidence—mostly of a demographic nature—to establish that French was no longer in jeopardy in Quebec. He also presented the viva voce testimony of several defendants in order to describe how the application of the impugned sections of the CFL affected their dignity. As we shall see in a later section of this judgement, their testimony was in support of an alleged violation of the equality sections of both the Canadian Charter (s. 15) and the Quebec Charter (s. 10).

[68]         In one case, it became blatantly clear that part of a witnesses’ testimony should have been heard on the merits (first part of the trial) rather than on the constitutional issues regarding equality. This was the situation of Mr. Thomas Filgiano, president of Meldrum the Mover (Les Déménageurs Meldrum Inc.). In the course of his testimony on the equality issue (constitutional challenge), he made certain comments which went directly to the merits of the case. If accepted, the explanations would lead to an acquittal pure and simple.

[69]        The charge against Mr. Thomas Filgiano’s company may be summarized as follows. In August 2003, an inspector for the Office québécois de la langue française (OQLF) noted that a truck parked on the premises of the company featured a unilingual English sign or slogan: «everything inside packed with pride». On the back panel of the truck, the French descriptor, «Les Déménageurs», was allotted the same space as the English descriptor of the company, «The Mover». Also, the French descriptor was placed on the very top of the panel. The company name, Meldrum, painted in bold red figured prominently in between the French and English descriptors. While the name of the company and its bilingual descriptors occupied the top half of the panel, the space at the bottom was taken up by the afore-mentioned slogan.

[70]        The same inspector returned to the premises of Meldrum the Mover in September of 2003 and noted other violations to the signs law. More particularly, the bilingual advertising on certain vehicles allotted equal space to both French and English—thereby, contravening the rule of marked predominance of the French language.

[71]        Mr Filgiano expressed his dismay that the truck was even flagged for a violation. The truck had been out of commission for three years—rusting away in one of the company’s two yards. The truck was kept on the company grounds only as a source for spare parts for the newer vehicles. Mr. Filgiano also added that the truck was parked in an area inaccessible to the public; for that matter, it was even out of public view. For him, the inspector had to have trespassed on the company grounds in order to spot the offending vehicle.

[72]          Next, Mr. Filgiano presented a trade mark defence for the phrase or slogan that appeared only in English on the vehicle: «everything inside packed with pride». He explained that the slogan had been used by his company since the 1930s. Though it was catchy (it does rhyme), it was difficult to translate into French. The new trucks have another slogan: «Nos services font toute la différence/ Because service makes the difference.»

[73]        With regards to the equally sized French-English signs on his trucks, Mr. Filgiano explained that the French text always came first. For him, this simple priority in placement respected the criteria of marked predominance dictated by the CFL.

[74]        The Court raised proprio motu the question of re-opening the evidence so that the testimony of Mr Filgiano at the constitutional phase could also be considered on the merits of the case. The Attorney General objected, pointing to the fact that the presentation of the case (on its merits) had been agreed to by the parties—With the exception of one inspector of the (OQLF), they would proceed by way of admission. Photos, letters and other documents would be filed into the record but subject to legal arguments on whether or not the law was infringed. Given the undertaking of both parties, the Attorney General argued that it would be improper for the Court to reopen the evidence. The Attorney General’s objection was also based on procedural fairness:  were it not for the admissions agreed to by the parties, the presentation of the prosecution’s case would have been different.

[75]        Not without concern for the Attorney General, the infraction occurred over 11 years ago. Though pictures of the truck were filed in evidence, the written notes of the inspector who witnessed the infraction did not contain a great deal of detail as to the placement and condition of the truck. Assuming that the inspector who witnessed the infraction and drafted the violation notice was available, it was not certain that he or she could recall the relevant details so as to rebut the testimony of Mr. Filgiano.

[76]        This being said, the photographs filed in evidence do corroborate the testimony of Mr. Filgiano. Though the photographs were focussed on the unilingual slogan printed on the back door of the truck, it is obvious that the vehicle was not in stellar condition. On the ledge of the back door entrance, on the back bumper and on the lift of the vehicle, one could clearly see that rust had set in. A safety warning printed on a metallic plate above the ledge of the back door was frayed on the edges and looked ready to succumb to rust. Also, the paint right above the said metallic plate was flaking off.

[77]        Mr. Tyler candidly admitted that he committed an error in not making his client testify on the merits of the case. One must say, however, that the presentation of the entire case on behalf of the defendants-petitioners was quite daunting. Aside from having to juggle all the facts on the merits of the case, Mr Tyler also had to prepare the second phase of the hearing, the constitutional challenge to the CFL. The evidence justifying a review of the signs law was no simple task to master—the demographic material is complex and subject to numerous interpretations. Not without concern, the law regarding every aspect of the constitutional challenge can be overwhelming (division of powers, freedom of expression, equality rights, right to liberty). The daunting nature of the challenge is compounded by the fact that the alleged infringements of rights have to be considered in the context of two charters—the Canadian Charter of Rights and the Quebec Charter of Human Rights). While the Attorney General was represented by three experienced and skilled lawyers, Mr Tyler represented the defendants-petitioners alone. Under these circumstances, the Court can understand the minor slip in the presentation of the case on its merits for the defendants.

[78]        Moreover, Mr Filgiano has been waiting circa 11 years for his day in court; one minor guffaw will not preclude him from presenting a full defence. Fairness dictates that the Court re-open the evidence to include in the merits phase of the case certain pronouncements made by Mr Figliano at the constitutional phase of the hearing.

[79]         In deciding to re-open the evidence, the Court took into consideration that the passage of time would make it difficult for the Attorney General to counter the claims of the defendant. Nonetheless, the Court is of the view that fairness and justice dictates that the testimony given by Mr Filgiano during the constitutional phase of the hearing should be included in deciding the merits of the case.  

Analysis of the common law defences and their application to the cases at bar

 

—Introductory remarks

[80]        The next chapter in this judgement will deal with the common law defences presented by Mr. Tyler on behalf of his clients. As the facts—for the most part—are not an issue, the Court will deal with each of the common law defences and determine whether they are applicable to any of the cases at bar. At times, the Court will glean from the files certain details so as to better explain the reasons for judgement.

[81]        The facts relating to alleged violations committed by Meldrum the Mover required a little more elaboration. At the end of this chapter—after having reviewed the common law defences presented by Mr Tyler—the Court will address the particular case of «Meldrum the Mover».

—Want of information

[82]        Mr Tyler argued that the spirit of the CFL was not to punish those who transgressed the law, but rather to encourage and help merchants in complying with the dictates of the law. He noted, however, that the letters of default sent to the merchants were wanting with regards to the specific nature of the alleged violations and, more importantly, with regards to the appropriate course of action to remedy the fault. In the absence of such details, argued Mr Tyler, the Attorney General could not prosecute.

[83]        For the reasons that follow, the Court cannot accept this defence

 

—The notices adequately described the fault

[84]        The nature of the fault was amply described in the notices sent by the OQLF. No reasonable merchant could claim that he or she was left in doubt as to the nature of the violation and the appropriate remedy under the circumstances. The offences are obvious and the corrective measures are equally obvious. Regarding a notice for an internet site that has no equivalent in the official language, what further details could a merchant need? Similarly, for an item in a store whose packaging, wrapping or instruction manual is only in English, what more details does a merchant require? If a commercial sign is in English only, the fault is obvious and the remedy is just as obvious—the sign must be replaced by a sign that is only in French or by a sign that contains another language so long as French is markedly predominant.

—Invitation to communicate with the inspector for further information

[85]        One must note that all the notices sent by the OQLF gave the merchants a time delay in which to comply. Moreover, the notices invited the merchants to communicate with the inspector in the event that they may have any questions. It should be noted that some of the merchants in the present matter didn’t even bother to communicate with the inspector who drafted the notices.

—Ignorance of the law is no excuse

[86]        The law is clear: with regards to commercial signs, the merchant could post in another language as long as French is markedly predominant. With regards to catalogues and packaging, another language may be used as long as French is afforded an equal space. The merchants are presumed to know the CFL as well as its regulations.

—De minimis non curat lex

[87]        For Mr Tyler, the violations to the CFL were trivial and not worthy of prosecution. For that matter, the prosecution of such slight irregularities was petty and mean-spirited.

[88]        Does our law recognize a de minimis defence? In R. v. Hinchey, [1996] 3 SCR 1128, 1996 CanLII 157 (SCC), par. 69, Justice L'Heureux-Dubé indicated that the principle of de minimis non curat lex is open for interpretation :

In my view, this interpretation removes the possibility that the section will trap trivial and unintended violations. Nevertheless, assuming that situations could still arise which do not warrant a criminal sanction, there might be another method to avoid entering a conviction: the principle of de minimis non curat lex, that "the law does not concern itself with trifles". This type of solution to cases where an accused has "technically" violated a Code section has been proposed by the Canadian Bar Association, in Principles of Criminal Liability: Proposals for a New General Part of the Criminal Code of Canada (1992), and others: see Professor Stuart, Canadian Criminal Law: A Treatise (3rd ed. 1995) at pp. 542-46. I am aware, however, that this principle's potential application as a defence to criminal culpability has not yet been decided by this Court, and would appear to be the subject of some debate in the courts below. Since a resolution of this issue is not strictly necessary to decide this case, I would prefer to leave this issue for another day.

[89]        Though there is no clear guidance from the Supreme Court, numerous court decisions (both in first instance and in provincial appellate courts) have recognized the de minimis principle. In R. v. Freidman, 2006 QCCQ 1855 (CanLII), at paragraphs 47 and 48,  Justice Vauclair of the Court of Quebec (as he then was) described the various matters in which the de minimis defence was acknowledged though not necessarily applied :

[I]t is worth noting that in various decisions, it (de minimus) was applied or the Courts acknowledged the defence but held that the facts did not justify its application: wilful obstruction [43], mischief [44], uttering threat and possessing a weapon for a purpose dangerous to the public peace [45], breach of trust [46], theft [47], uttering threat, criminal harassment, and interfering with lawful use of property [48], breach of a court order banning publication [49], breach of the Unemployment Insurance Act [50] and  fishing offences [51].

The doctrine was amply discussed in cases of possession of an illegal substance, in which courts had to determine if a minute trace of an illegal substance was sufficient to convict for possession.  It was applied in R. v. Peleshaty [52], R. v. Overvold [53] and more recently in R. v. Marusiak [54].  It was refused in R. v. Knezo because the Court concluded that quantity was not an ingredient of the offence, as well as in R. v. Babiak and Stefaniuk where the Court found that "the law only requires that the amount be sufficient for the analyst to identify it." [55].  The defence is much interwoven with other defences such as lack of knowledge or actual possession [56]. (parenthesis added and footnotes deleted from the original)

[90]        The Attorney General’s view was that a de minimus defence was not available in view of the important objectives of the CFL—the protection and promotion of the French language.

[91]        Interestingly, Mr Tyler sees in the same objectives of the CFL a reason to allow a de minimus defence. In essence, it was argued that the offences were so insignificant that they posed no credible threat to the survival or promotion of the French language.

[92]        In the preamble to the CFL, the objective of the law is clearly stated :

WHEREAS the French language, the distinctive language of a people that is in the majority French-speaking, is the instrument by which that people has articulated its identity;

Whereas the National Assembly of Québec recognizes that Quebecers wish to see the quality and influence of the French language assured, and is resolved therefore to make of French the language of Government and the Law, as well as the normal and everyday language of work, instruction, communication, commerce and business.

[93]        Does the noble objective of the CFL, however, require the prosecution for the slightest digression from the letter of the law? Though the objective of the law may be a consideration, there might still be instances in which a Court could properly overlook a digression that was a mere trifle and that would weigh little if nothing in the public interest. Though not an exhaustive list by any means, the Court offers these examples of trivial prosecutions to the signs law :

●          On a commercial sign or poster where an inspector’s tape measure indicates that the «marked predominance» of French falls short by a couple of millimetres;    

●          On a catalogue whose hundreds of pages include a French equivalent to the English version save for a word or a phrase;

●          On a box or wrapper or instruction manual replete with information or instructions in both English and French save for a word or two in English (that got lost in translation).

[94]        In the afore-mentioned examples, the Court has considered the de minimis principle in relation to the nature of the infraction (i.e., marked predominance on commercial signs and joint use in catalogues or in product packages). The Court does not mean to mean to down-play the important objectives of the law. Indeed, the Supreme Court in Ford clearly stated that the signs legislation had important and pressing objectives: the protection of the French language and a linguistic landscape that reflected the demographic reality of the province. However, for the purposes of the judgement in the cases at bar, the application of the de minimis principle may be examined without having to consider the objectives of the CFL’s commercial signs provisions.

[95]        With a strictly nuts and bolts analysis, does the de minimis principle apply to the cases at bar? If the law calls for marked predominance in commercial signs, the Court does not see how an equally-sized bilingual sign can constitute but a small or insignificant deviation from the dictates of the law. The sign is either markedly predominant or it is not. Similarly, in the cases where the law allows for joint use of French and another language—how could one simply  say that a box or a wrapper that is drafted wholly in English constitutes but a trivial deviation from the dictates of the law? The violation is manifest and cannot be discounted as insignificant. Finally, how can one claim that an internet website only in English constitutes but a trivial or trifling matter that should not attract sanctions? You either have the French equivalent or you don’t. Excluding it cannot rationally lend itself to a de minimis defence.

[96]        In sum, the violations are clear infractions of the law—there is no need to consider the objectives of the law.

[97]        In the event that the Court has erred in its «nuts and bolts » approach to the application of the de minimus principle, it is worth mentioning—once again—that the Supreme Court in Ford stipulated that the CFL’s objective of assuring a visage linguistique that reflected the predominance of the French language was a legitimate one.  Given this legitimate objective, how can an equally sized bilingual French-English sign reflect the demographic reality of Quebec?  Similarly, how can a catalogue or brochure printed and disseminated only in English reflect the fact that the great majority of the province’s inhabitants are French-speaking?

—Markedly predominant

[98]        Some of the defendants claimed that the mere fact of posting the French version of a sign before the English version was enough to meet the criteria for the marked predominance of French as set out at s. 58 of the CFL. A case in point is that of Industries Garanties/Guaranteed industries. The commercial signs posted outside its establishment were divided equally between French and English. The top half of the signs list the nature of the service offered: «climatisation/air conditioning». The bottom half of the sign is taken up by the bilingual name of the company: « Industries Garanties/Guaranteed Industries». The French portion of the sign—be it related to the service offered or to the name of the company—always appears on top of its English equivalent. The space allotted to both languages is equal. Similarly, the advertising on the company’s vehicles affords equal space to French and English; and the French portion of the sign, «climatisation» is placed directly above the English portion, «air conditioning» . 

[99]        The debate, of course, centers on the meaning of the words «markedly predominant» in the English text of the law and «nettement prédominant» in the French version of the law. For the Attorney General, simple priority given to the placement of the French language cannot satisfy the plain meaning and legislative objectives of the law—one of the objectives being a linguistic landscape that reflects the demographic reality of the province. Instead, the term «markedly predominant» requires that the visual impact of the French language be greater than the other language(s) on the commercial sign.

[100]     The term «markedly predominant», noted the Attorney General, is the object of its own regulation under the Charter and generally requires that the «text in French has a much greater visual impact than the text in the other language.[34]»  Section 2 of the Regulation lists a series of conditions in which French is «deemed to have a much greater visual impact » than the other language :

1)         the space allotted to the text in French is at least twice as large as the space allotted to the text in the other language;

(2)        the characters used in the text in French are at least twice as large as those used in the text in the other language; and

(3)        the other characteristics of the sign or poster do not have the effect of reducing the visual impact of the text in French.

[101]     Mr. Tyler argued that the use of the word «deemed» at s. 2 of the Regulation does not limit the definition or application of the phrase «markedly predominant» to the two-for-one rule. Though that may very well be the case, one has to bear in mind that two-for-one rule conveys the obligation upon the merchant to give the French language a greater visual impact than the other language on a commercial sign.

[102]     With respect for the contrary view, a plain meaning of the terms «markedly predominant» or «nettement prédominante» in the French version of the law requires more than mere priority in the placement of the French text of a bilingual sign. In the Oxford English Reference Dictionary, the word «marked» is defined as «clearly noticeable; evident.» The word «predominant» is defined as «being the strongest or main element.» Among the definitions of the word «nettement » in the Petit Robert, one reads: «d’une manière claire, très visible (concret)». The same dictionary defines the word «prédominant(e)» as «qui prédomine». The verb «prédominer», in turn, is defined as « Être en plus grande quantité; être le plus important.» 

[103]     Considering all of the afore-mentioned definitions, marked predominance refers to the greater visual impact of the French language when compared to the other language included on a sign. The visual impact of the French language has to be clear and unequivocal. Such a clear and unequivocal impact is achieved by the two-for-one rule described in the Regulation. On the other hand, simple priority in the placement of the French language does not clearly establish the visual predominance of the French language. When it comes to the language of signs and the marked predominance of the French language, size does matter. 

—Trade-marks

[104]     Exceptions to the application of s. 58 of the CFL can be determined by regulations adopted by the Quebec government. Such exceptions are provided for at sections 25 and 27 of the Regulation Respecting the Language of Commerce and Business (RRLCB), which read as follows : 

25. On public signs and posters and in commercial advertising, the following may appear exclusively in a language other than French:

 […]    the firm name of a firm established exclusively outside Québec;

(4)    a recognized trade mark within the meaning of the Trade Marks Act (R.S.C. 1985, c. T-13), unless a French version has been registered.

27.  An expression taken from a language other than French may appear in a firm name to specify it provided that the expression is used with a generic term in the French language.

[105]     On behalf of two defendants—Mundi  Canada Inc. and Meldrum the Mover—Mr. Tyler argued that the offending English portion of their commercial sign or poster benefitted from the trade-mark exemption to s. 58 of the CFL. With regards to Mundi, the phrase purportedly falling in the trade-mark exemptions read:  «Italian fancy leather goods». For Meldurm the Mover, the trademark exempt phrase read: «Everything inside packed with pride».

[106]     Neither one of the purported trade-marks was registered. However, as Justice Brumpton noted in his decision in Centre Sportif St-Eustache c. Québec (Procureur Général), at par. 19, «a non-registered trade-mark can fall within the exception found at para. 25(4) of the Regulation.» In Magasins Best Buy ltée c. Québec (Procureur général), 2014 QCCS 1427 (CanLII), Justice Yergeau pointed out that trade-marks are a matter of federal jurisdiction, governed by rules independent from the CFL and the RRLCB. As the law recognizes both common law trade-marks and registered trade-marks, the want of a registered trade-mark is not an impediment to exemption from s. 58 of the law.

[107]     This being said, the evidence in favour of a trade-mark exemption for Mundi is thin. Ms. Danielle Besnos, the main shareholder of Mundi, testified during the constitutional phase of the hearing. As was the case with Mr Filgiano, her testimony was directed to the equality issues set out at section 15 of the Canadian Charter and section 10 of the Quebec Charter. She had a lot to say on the matter in which the application of the CFL law affected her dignity as a member of the English-speaking minority, but regarding the trade-mark of the phrase «Italian fancy leather goods», nary a word.

[108]     Section 64 of the Code of Penal Procedure holds that it is not up to the prosecution to prove that the defendant does not benefit from an «exception, exemption, excuse or justification provided for by law.» Instead, that burden falls to the defendant. As nothing in the evidence establishes that the phrase «Italian Fancy Leather Goods» was used by the defendant to promote a product or a service in a distinctive manner, no trade-mark exemption was established. For that matter, the phrase is nothing more than a generic description of the products sold by the company. As a descriptor of the products offered by the company, the phrase had to be drafted only in French or in another language so long as French was markedly predominant.

[109]     Even if the Court is wrong with regards to whether or not the afore-mentioned phrase constituted a trade-mark, the end result would still be the same for Mundi. The front entrance to its place of business contained equally-sized bilingual signs where French (though it appears first) is not given marked predominance.

[110]     The case is different for Meldrum the Mover. Mr. Filgiano explained that his company had been using the slogan «everything inside packed with pride» since 1930. The phrase rings like a slogan; it even rhymes. Having heard the evidence, the Court is satisfied that the said phrase qualifies as a common law trade-mark exception to s. 58 of the CFL.

[111]     In the event that the Court has erred in the interpretation of the trade-mark application for Meldrum, the facts of the case do not lend themselves to a conviction. One will recall Mr. Filgiano’s testimony to the effect that the truck bearing the afore-mentioned slogan had been out of commission for three years and that it was parked in the back of the company’s yard. The truck did not serve to advertise the services of the company. Indeed, it was off the road and parked in an area that was not accessible to the general public. The truck—no more than a rusting heap of metal—was kept on the company grounds for spare parts. Given the limited vocation of the car and given the fact that it was not in the public view, one cannot say that it was a commercial sign.

[112]     One of the purposes behind the signs legislation was to ensure that the linguistic landscape of the province reflected the fact that it is was/is a province whose inhabitants are predominantly French-speaking. The linguistic landscape of the province cannot be affected by a slogan that appears on a truck that was rusting away on a yard that was inaccessible to the general public.

[113]     In short, the Court is of the view that the s. 58 of the CFL cannot encompass slogans posted on vehicles (or elsewhere) that were not intended for the public view. If the Court has also erred in this interpretation of s. 58, the circumstances of the case lend themselves to a de minimis defence.  The infraction, if any, was so insignificant that the Court may overlook it.

Conclusions on the merits of the cases

[114]     The Court has only described the cases which might lend themselves to opposing interpretations of the law. For the most part, the cases before the Court were clear-cut: commercial signs only in English; packaging or wrapping of various objects printed only in English; internet websites that were only in English without a French equivalent. On the merits, all these defendants are guilty as charged. Their last hope lies on the constitutional arguments which will be discussed next.

[115]      On the merits, an acquittal will only be entered in the case of Meldrum the Mover, file no: 500-61-188529-045.

Constitutional issues

—Division of powers

[116]     Several defendants have been accused of publishing on the internet in English only—contravening , thereby, section 52 of the CFL that reads :

Catalogues, brochures, folders, commercial directories and any similar publications must be drawn up in French.

[117]     As mentioned earlier in this judgement, a decision rendered by Justice Fraser Martin of the Quebec Superior Court in Reid v. Court of Québec, 2003 CanLII 17980 (QC CS), held  that commercial internet publications came within the scope of s. 52 of the CFL.  In essence, his decision was predicated on the fact that the said section does not limit the transmission of a commercial message to a specific medium or vehicle :

While proof of the medium will virtually always be necessary particularly if it is specified in the charge it nevertheless is not in the context of the statute an essential element of the offence. It may well however determinate as to whether or not the publication is commercial in nature. Had the legislator elected, whether in the statute or in the regulation to specify or spell out the potential vehicles of transmission then the situation would have been different. (par 16).

….It is only at that point in time and space where the document, by whatever the medium, is launched into what I will call, for the sake of convenience, the public   that it becomes vested with the characteristics if a commercial publication as contemplated by Section 52 of the statute. It may respectful view that is the only reasonable way to interpret the words of the section and to ascribe to them their plain meaning. (par 17)

[118]     Justice Martin’s ruling in Reid confirmed the decision rendered in first instance by Justice Boyer of the Court of Quebec who, at paragraphs 29 and 30 of his judgement held that the medium in which the publication was disseminated mattered little in what concerns the application of s. 52 of the CFL.  A brochure, catalogue and directory could just as well be in an electronic or paper format :

Je ne perçois pas de difficulté à voir dans la liste de l’article 52 une restriction générique aux termes énumérés mais je me refuse en revanche d’y voir dans cette catégorie une limite au support technologique praticable pour diffuser cette information.

Il peut en effet exister des catalogues, brochures, dépliants et annuaires aussi bien sous forme électronique que sous forme d’impression de papier[35].

[119]     The decision in Reid—be it at the Court of Quebec or at the Superior court—focussed primarily on the interpretation of s. 52 in so far as it applied to internet publications. The reading of Justice Fraser Martin’s decision, however, also suggested that jurisdictional issues were raised by the defendant—to wit, that the Quebec government was attempting to regulate the internet, a federal concern. Though the decision has few details on the jurisdictional issues raised, one would imagine that the defendant (also represented by Mr. Tyler) wanted the Court to conclude that the sanctioning of internet websites published only in English was ultra vires the Quebec government.

[120]     Justice Martin dismissed the defendant’s arguments in three short paragraphs :

A last word. In the course of his submissions before this court counsel for the Appellants suggested not only that Section 52 of the statute did not contemplate publications posted on the internet (but also) that the Attorney-general was attempting to regulate the internet itself. (par. 22)

Without  (dwelling) on the nuances which may flow form the notion of regulation of the internet I do not think that in citing the internet as the medium by which the offending commercial announcement was made the Attorney-general can be seen in any sense as attempting to regulate the internet. The charge does not beyond attempting to sanction commercial advertising which does not conform to the statute. (par. 23) (Word in parenthesis added)

If the Appellants had arranged to have had the same announcement placed upon a large banner and towed behind an aircraft for half of the population of Montreal to see would counsel for (the petitioner) have been heard to argue that the Attorney-general was attempting to regulate Aeronautics ? (par. 24)   (Words in parenthesis added)

[121]     Though not formulated as such, the essence of Justice Fraser Martin’s decision was to the effect that the enactment and enforcement of s. 52 of the CFL should not be equated with a governmental effort to regulate the means used to transmit the message. Instead, the governmental action reflects its will to regulate the content of the message being transmitted. It matters not at all if the message and its contents were transmitted in a paper form (such as the old Eaton’s catalogues) or transmitted digitally via the internet. The medium is not the message.

[122]     In the cases at bar, for the merchants who were sanctioned for posting on the internet only in English without a French equivalent, Mr Tyler has raised the jurisdictional issue once again. The presentation of his case may have been different than his previous attempt, but the arguments remain the same: the Quebec government—in sanctioning merchants for posting on the internet—was attempting to regulate the internet, a matter which is the exclusive domain of the federal government. Accordingly, the Quebec government’s actions were ultra vires.

[123]     Mr Tyler submitted no case law to confirm his position on the jurisdictional issue. He argued, however, that the internet should fall under the broad powers of the Federal government to regulate telecommunications and broadcasting.  Indeed, the courts have confirmed that radio broadcasting is within the jurisdictional competence of the central government (The Attorney General of Quebec v. The Attorney General of Canada and others, [1932] A.C. 304—a decision in which the Privy Council confirmed the majority decision of the Supreme Court). Also, in Capital Cities Communications v. CRTC  (1977), [1978] 2 S.C.R. 141, the Supreme Court of Canada determined that cable-television delivery—involving the relaying and delivering of programming—is a federal undertaking on account of sections 91 (the residual clause) and 92(10) of the Constitution Act, 1867.

[124]     The Attorney General countered the jurisdictional arguments by noting, firstly, that the provinces alone have power over civil rights and on matters of a purely local or private nature according to the terms of sections 92(13) and 92(16) of the Constitution Act, 1867. The said articles also encompass commercial or business matters conducted in the province. Contrary to the allegations advanced on behalf of the petitioners, the impugned legislation has no designs on the internet (which arguably could fall within the federal jurisdiction); instead, the legislation is merely aimed at controlling the manner in which business is conducted in the province.

[125]     In Devine, the CFL was challenged on two different constitutional grounds. One of the grounds was predicated on the alleged violation of Charter rights (a matter we will discuss in a later chapter); the other ground was jurisdictional in nature—the petitioner argued that the impugned provisions of the CFL constituted Criminal law under the Constitution Act 1867, because it involves a prohibition accompanied by a stiff fine. The Supreme Court dismissed the jurisdictional arguments by noting that the veritable nature of the legislation was to regulate the manner in which commerce was to be conducted in the province :

It is true, as the preamble of the Charter of the French Language, that one of its objects is "to make of French the language of ... commerce and business" but that object necessarily involves the regulation of an aspect of commerce and business within the province, whatever the nature of the effect of such regulation may be. The purpose and effect of the challenged provisions of Chapter VII of the Charter of the French Language entitled "The Language of Commerce and Business" is to regulate an aspect of the manner in which commerce and business in the province may be carried on and as such they are in relation to such commerce and business. That the overall object of the Charter of the French Language is the enhancement of the status of the French language in Quebec does not make the challenged provisions any less an intended regulation of an aspect of commerce within the province. As such, they fall within provincial legislative jurisdiction under the Constitution Act, 1867. (Page 809)

[126]     The Court agrees with the Attorney General of Quebec that the true character of the impugned legislation cannot be put in doubt simply because the infractions were committed through unilingual English postings on the internet. In Devine, the Court held that the Quebec legislature could regulate language when it comes to commercial signs. Similarly, it could regulate language when it comes to commercial advertising on the internet.

[127]     Previous Supreme Court decisions have confirmed the authority of the Quebec legislature to limit advertising on television commercials that were directed at children. In Attorney General v. Kellogg’s, the province of Quebec adopted a regulation under the Consumer Protection Act prohibiting advertising to children through cartoon shows. The Supreme Court dismissed the jurisdictional challenge by Kellogg’s by noting that the object of the Regulation was not to regulate or to interfere with the operation of a broadcast (as was the case in Capital Cities). Instead, the law sought to :

... prevent Kellogg from using a certain kind of advertising by any means. It aims at controlling the commercial activity of Kellogg. The fact that Kellogg is precluded from using televised advertising may, incidentally, affect the revenue of one or more television stations but it does not change the true nature of the regulation. (page 225)

[128]     Kellogg’s, explained the Court, was not exempted from the application of the law because it elected to advertise through a medium which was subject to federal control.[36]

[129]     Similarly, in Irwin Toys, the defendant, a toy manufacturer, sought a declaratory judgement that sections 248 and 249 of Quebec’s Consumer Protection Act, prohibiting advertising to children less than 13 years old, was ultra vires the Quebec legislature.[37] The majority of the Supreme Court described sections 248 and 249 of the Act as a «legislation of general application in relation to consumer protection, as in Kellogg’s, rather than a colourable attempt, under the guise of general application, to legislate in relation to television advertising.»  Sections 248 and 249 of the Act do not purport to apply to television broadcast undertakings, but to the acts of an advertiser. As was the case in Kellogg’s, a distinction was drawn between the medium and the message.

[130]     By analogy, the same principles apply to the cases at bar. The impugned sections of CFL are laws of general application regarding the language of commerce and business in the province—matters of provincial concern according to sections 92(13 and 92(16) of the Constitution Act, 1867. The Quebec government may legitimately pass such legislation even though its application encompasses certain means of telecommunication (like the internet) associated with a federal sphere of jurisdiction.[38]

[131]     In sum, the core aspect of the impugned section of the CFL does not purport to regulate the internet. Instead, the said section is chiefly concerned with regulating commercial activities that use the internet as a medium to disseminate the message.[39]

[132]     For all of the afore-mentioned reasons, the arguments advanced for the petitioners-defendants holding that s. 52 was ultra-vires the power of the Quebec legislature (as applied to internet postings), must fail.

—Issues on the Charter violations

 

Rational connection between the language of signs and the protection of the French language

 

[133]     Mr Veltman, the expert witness called to testify on behalf of the defendants-petitioners, stated that there was no logical connection between the language of signs and the protection of the French language. Immigrants in Quebec do not gravitate to French rather than English because commercial signs are predominantly in French. Instead, the choice to adopt French (rather than English) is predicated on real-life concerns—such as employment opportunities. As French is the language of the work place, necessity dictates that the new immigrant learn the majority language of the province.

[134]     Arguably, the most important aspect of the CFL (in terms of the future of the French language in Quebec) is the obligation it imposes upon immigrants to send their children to French schools.  Mr Veltman, the sociologist, explained, that school-age children—in an effort to fit in with the majority of their classmates—will distance themselves from the old world culture of their parents and gravitate to the French language and culture of their peers. In time—possibly in two generations—these children of immigrants will be totally francized. The problem with the language pessimists, claimed Mr Veltman, is that they are not patient enough.

[135]     Mr Veltman praised the positive aspects of the CFL that promoted the French language, i.e., those relating to the language of work and the obligation imposed on the children of new immigrants to attend French schools. However, he dismissed the legislation on commercial signs as nothing more than marketing. To his knowledge, there was no study that established a connection between the language of signs and the protection or enhancement of a language.

[136]     Both experts, noted Mr. Tyler, agreed on the basic factors shaping linguistic demography in Quebec: birth rate, death rate, employment opportunities and immigration. He quipped that people don’t choose to have more children on account of the language of signs and they certainly don’t die any sooner or later based on the language of signs. Nor do immigrants choose to come to Quebec based on the language of signs.

[137]     Before embarking on an examination of the Charter related issued, the Court must first address the question of whether or not the language of signs has any bearing or influence on the protection of the French language. Indeed, if there is no rational connection between commercial signs and the protection of a language, the government is trampling on individual rights without any justification whatsoever. Also, in the absence of a rational connection between the language of signs and the protection of a language, the debate on whether or not the French language is vulnerable is a moot point (as the vulnerability of the language gets no succour from the legislative means deployed to prop it up). 

[138]       Mr Termote, a demographer and not a sociologist by training, simply stated that there was a rational connection between the language of signs and the protection of the French language in Quebec. He pointed to one study—Caractéristiques du quartier de résidence et comportements linguistiques des immigrants allophones de la RMR de Montréal, by Robert Bourbeau, Norbert Robitaille and Rémi Ouellet, 2011, Gouvernement du Québec—which noted a positive trend in favour of French for Allophones living in predominantly French-speaking neighbourhoods. The study, however, had nothing to do with the language of commercial signs and their influence, if any, on the linguistic choices of immigrants in Quebec.

[139]     Though not phrased as such, Mr. Termote was basically voicing the opinion that French language signs impress upon the newly arrived immigrant the message that Quebec is a French jurisdiction. In other words, the predominantly French signs become a visible reflection of the majority culture. Moreover, in a context where French is perpetually in competition with English, the predominance of French commercial signs imparts upon the new immigrant the importance of learning the language of the majority.

[140]      The judgement of the Supreme Court of Canada in Ford noted the legitimate goals of the language legislation: the protection of the French language and the importance of having commercial signs that reflected the linguistic landscape of the province. It also noted that the language of signs conveyed a message on the relative importance (or the lack thereof) of a language. At page 778 of the judgement, the Court—after listing the various factors that threatened the French language—commented on the manner in which the language of signs in the pre-CFL era projected a negative impression about the vitality and practicality of the  French language :

[I]n the period prior to the enactment of the legislation at issue, the "visage linguistique" of Quebec often gave the impression that English had become as significant as French. This "visage linguistique" reinforced the concern among francophones that English was gaining in importance, that the French language was threatened and that it would ultimately disappear. It strongly suggested to young and ambitious francophones that the language of success was almost exclusively English. It confirmed to anglophones that there was no great need to learn the majority language. And it suggested to immigrants that the prudent course lay in joining the anglophone community. The aim of such provisions as ss. 58 and 69 of the Charter of the French Language was, in the words of its preamble, "to see the quality and influence of the French language assured". The threat to the French language demonstrated to the government that it should, in particular, take steps to assure that the "visage linguistique" of Quebec would reflect the predominance of the French language.

[141]     The judgement of the Supreme Court in Ford, unfortunately, fails to note that one of the objectives of the signs legislation was to promote the French language among Allophones. The late Premier, René Levesque (quoted by Yves Beauchemin in La Presse on April 25 1980) said :

In its own way each bilingual sign says to the immigrant: there are two languages here, French and English, and you chose the one you want. To the Anglophone, it says you don’t need to learn French; everything is translated.[40]

[142]     According to José Woerling, law professor at the Université de Montréal, the objective of the legislation was based on the assumption that the «linguistic landscape» affects the psychological attitudes of non-Francophones towards the French language :

 

Cet objectif spécifique est de la plus haute importance étant donné que le législateur québécois, en adoptant la loi 101, était convaincu que le « paysage linguistique » conditionne en grande partie l'attitude psychologique des non-francophones à l'égard de la langue française.

…Or, certaines constatations semblent précisément démontrer que, dans la mesure où il est bilingue ou multilingue, l'environnement visuel — en bonne partie constitué par les affiches, la publicité commerciale et des raisons sociales — contribue à dissuader ceux qui ne savent pas le français de l'apprendre, en les persuadant qu'il n'est pas nécessaire, ni même utile de faire cet effort. À cause de son caractère public et parce qu'il contribue de façon déterminante à créer le « visage linguistique » du Québec, l'affichage a une forte valeur symbolique; il fonctionne donc comme un catalyseur psychologique et influence de façon importante le comportement conscient et inconscient des individus.

Autrement dit, la loi 101 ayant pour objectif général d'amener les non-francophones à apprendre et à utiliser le français, et ceux-ci étant réticents à le faire à cause du peu d'utilité et de prestige qu'ils sont portés à reconnaître à cette langue, il est nécessaire de créer des conditions qui soient de nature à modifier cette attitude. Un environnement visuel dans lequel les affiches, les inscriptions publicitaires et les raisons sociales sont rédigées uniquement en français peut contribuer puissamment au changement de mentalité recherché.[41]

[143]     Unlike the physical sciences, the social sciences do not lend themselves to direct empirical tests. Given the variables in human behaviour, how does one properly assess, measure or score the effects, if any, of the signs legislation on the linguistic choices of Allophones? Polls may be conducted to evaluate the factors that prompted Allophones to adopt the French language (rather than English). But the accuracy of such polls is inherently limited by the subjective appreciation of the person being interviewed. Moreover, how could a poll assign a score to all the factors that influenced the linguistic choice(s) of the new immigrant in Quebec? Though work purposes would not doubt be the chief factor in an immigrant’s language choice, does this necessarily mean that the linguistic landscape is without importance?

[144]     All this being said, one cannot discount that the language of signs—at the very least—has a symbolic value: it reflects both the relevance and value of a language. In an article focussing on the relationship between linguistic landscape and the social linguistic context, Jasone Cenoz and Jokin Aiestaran made the following comments :

On the one hand, the linguistic landscape reflects the relative power and status of the different languages in a specific sociolinguistic context. In this sense it is the product of specific situation and it can be considered as an additional source of information about the sociolinguistic context along with censuses, surveys or interviews. The majority language of a language community is more likely to be used more often in place names or commercial signs while the minority language or languages will not be as common (see for example Ramamoorthy,2002; Xiao, 1998). On the other hand, the linguistic landscape contributes to the construction of the sociolinguistic context because people process the visual information that comes to them, and the language in which signs are written can certainly influence their perception of the status of the different languages and even affect their own linguistic behaviour. The linguistic landscape or parts of the linguistic landscape can have an influence on language use[42]. (Emphasis added)

[145]     Though not predicated upon exact science, the Court is of the view that the greater visibility of French in the linguistic landscape contributes to the perception that it is a vital and important language. This perception is all the more important when one considers that English is the predominant culture in North America and that no one is insulated by its economic and cultural influence.

[146]      In the event that the Court has erred in its appreciation of the language of signs (in terms of its positive influence on the protection of the French language), support for its position is also predicated upon the principle of stare decisis. In the Ford case, the Supreme Court ruled that evidence presented by the Attorney General established the vulnerability of the French language[43].  The materials also established the need for a government response to an urgent and pressing situation (the vulnerability of the French language). The total ban of English from commercial signs was considered excessive and not justified under the limiting sections of both the Canadian and Quebec Charters. However, requiring the predominant display of the French language, even its marked predominance would be proportional to the goal of promoting and maintaining the French language.

[147]     With regards to the provisions of the CFL allowing for the joint use of French and another language, the Supreme Court  in Devine stated :

We have already determined that the requirement of joint use of French is rationally connected to the legislature’s pressing and substantial concern to ensure that the “visage linguistique” of Quebec reflects the predominance of the French language. (page 820)

[148]     In sum, the Supreme Court back in 1988 saw a rational connection between the language of signs (in which French is markedly predominant or in situations requiring concurrent use) and the protection and promotion of the French language.  Though Mr. Tyler may disagree with the conclusions of the Supreme Court, the precedent it established in Ford and Devine is binding on this Court.

 

Second guessing the Supreme Court :  Was the Ford decision predicated upon incomplete and outdated information?

[149]     Before moving to the Charter issues, the Court wishes to address the comments of Mr. Tyler to the effect that the Supreme Court’s decision in Ford was based on outdated and incomplete data. The Court’s decision, claimed Mr Tyler, would have been different had it also considered the seminal work of Réjean Lachapelle and Jacques Henrirpin: La situation démolinguistique au Canada : Évolution passée et perspective, supra. Without going into the details, the said study did not conclude that the French language was in jeopardy.

[150]     The Attorney General downplayed this argument by noting that the work of the said authors was based on sparse census data.

[151]     In answer to Mr Tyler’s arguments, the Court notes, firstly, that the materials considered by the Supreme Court in Ford and Devine were considerable.  At page 777 in the Ford decision, the Supreme Court gave a description of the sociological studies and statistical data it considered :

The section 1 and s. 9.1 materials consist of some fourteen items ranging in nature from the general theory of language policy and planning to statistical analysis of the position of the French language in Quebec and Canada. The material deals with two matters of particular relevance to the issue in the appeal: (a) the vulnerable position of the French language in Quebec and Canada, which is the reason for the language policy reflected in the Charter of the French Language; and (b) the importance attached by language planning theory to the role of language in the public domain, including the communication or expression by language contemplated by the challenged provisions of the Charter of the French Language. As to the first, the material amply establishes the importance of the legislative purpose reflected in the Charter of the French Language and that it is a response to a substantial and pressing need. Indeed, this was conceded by the respondents both in the Court of Appeal and in this Court. The vulnerable position of the French language in Quebec and Canada was described in a series of reports by commissions of inquiry beginning with the Report of the Royal Commission on Bilingualism and Biculturalism in 1969 and continuing with the Parent Commission and the Gendron Commission.

The material appended to the factum of the Attorney General of Quebec consists of general studies on sociolinguistics and language planning and articles, reports and statistics indicating the position of the French language in Quebec and Canada that is said to have given rise to and to justify the language planning policy reflected in the Charter of the French Language and earlier Quebec legislation having the same general purpose.

[152]     Moreover, the petitioners in Ford agreed with the tenor of the materials presented by the Attorney General of Quebec :

They submitted that, assuming the material properly formed part of the record, it did not justify the limit imposed on freedom of expression by ss. 58 and 69 of the Charter of the French Language. They conceded that the material showed that the purpose of the challenged legislation was of sufficient importance to warrant an interference with a guaranteed freedom but submitted that it did not satisfy the proportionality test. (page 776)

[153]     In short, there was ample information before the Court in Ford and Devine to conclude that that the French language in Quebec was vulnerable. Moreover, the study of Rejean Lachapelle and Jacques Henripin has its own inherent limitations—the want of recent census data. More particularly, the study, published originally in 1980, did not include census information beyond 1976 (as no other data was available).

[154]     The Attorney General also pointed to the closing paragraph of the study in which the authors cautioned the reader on the reliability of forecasting in the field of demography :

Throughout this chapter and the preceding one, we have been engaged in a very risky venture, that of forecasting. In this field, experience shows that set-backs are much more numerous than successes, and this is why we have been generous in posting warnings…Notwithstanding all the precautions we have taken, the future will almost certainly contradict some of our forecast. (Page 319)

[155]     Given the limitations of the work of Rejean Lachapelle and Jacques Henripin, the Court doubts that it would have influenced the decision of the Supreme Court in Ford and Devine. In any case, Mr Tyler’s arguments on this point constitutes nothing more than speculation.  This Court will not second guess the Supreme Court of Canada.

 

Freedom of expression

[156]     The Supreme Court in Ford and Devine already answered the question of whether or not the impugned legislation constitutes a violation of freedom of expression as guaranteed by both the Canadian and Quebec Charters. In a nutshell, the total ban of languages other than French on a commercial sign constituted an unjustifiable limit to freedom of expression—as it failed to meet the minimal-impairment test set out in the Oakes decision. The Supreme Court, however, suggested (in obiter) an alternative measure that would satisfy the pressing and legitimate governmental objective to protect the French language while meeting the Oakes test :  the marked predominance of French on a commercial sign or poster or its concurrent use in various commercial matters (catalogues, brochures).

[157]       Mr Tyler for the petitioners-defendants claims that the urgent and pressing need to protect the French language that may have existed at the time of the Ford and Devine decisions are no longer an issue in 2014—the French language is no longer vulnerable. In the absence of such vulnerability, a limitation on freedom cannot be justified under section 1 of the Canadian Charter or section 9.1 of the Quebec Charter. 

[158]     The decision of this Court on whether or not the impugned sections constitute a justifiable limit to freedom of expression will hinge on a determination of whether or not the French language is still vulnerable. In assessing vulnerability, the Court will have to consider the statistical data and expert testimony presented by both parties.

—The evidence on vulnerability (or lack thereof)

[159]     In a previous section of this judgement, the Court outlined the basic facts and figures regarding the vulnerability of the French language. The Court also reviewed the testimony of the experts and their respective interpretation of the statistical data. In this section, the Court will boil down the evidence to the basic tenets supporting the respective views of the parties.

[160]     The case against the vulnerability of the French language was essentially predicated upon the following factors:

—The increasing rate in which third language speakers are transferring to the          French language

[161]     For Mr Veltman, this favourable trend for the French language is explained by (i) the dictates of the work-place (without a sufficient command of the French language, employment opportunities are rare) and (ii) by the legal obligation imposed upon immigrants to enrol their children in French schools. Not without merit in explaining the  renewed vigour of the French language is the fact that Quebec enjoys considerable powers on matters relating to  immigration—enabling it to favour, thereby, newcomers who already have a command of the French language.

[162]     In his report, L’évolution du Français au Québec de 2001 à 2011, supra, Mr. Veltman pointed to the following figures as proof positive that the French language is attracting a growing number of Allophones to its ranks: In 2006, among the 939, 355 people who spoke a mother tongue other than French or English, 498, 225 spoke their mother tongue at home. From the 441 130 (939, 355 - 498, 225) Allophones in various stages of assimilation (which could take up to two generations), 41.3% stated that they mostly spoke French at home as opposed to 38.4% that said they mostly spoke English.[44] The rate of attraction (le taux d’attractivité) in favour of the French language was 51%.[45] For the first time in Quebec history, French had surpassed English as a principle language among Allophones.[46]

[163]     The data for the year 2011 also attests to the positive trend in favour of French from third-language speakers. At table 6 in Mr Veltman’s report, one reads that for the year 2011 French attracted 222 376 Allophones as compared to English which attracted 187 531 Allophones.[47] In percentage terms it works out to 54.3 in favour of French as compared to the 44.7% for English.

[164]     Given time (perhaps two generations), the Allophones will eventually assimilate into the majority French population. The increasing rate of language transfers among third language speakers in favour of French, will assure population stability. 

—Down-play of the minority status of the French language in Montreal

[165]     The language pessimists constantly point to the decreasing number of French speakers on the island of Montreal as evidence that the French language is in jeopardy. Mr Veltman, on the other hand, was of the view that the island of Montreal cannot serve as the appropriate unit in which to gauge the vulnerability of the French language. Though Montreal is surrounded by water, the bridges leading to and fro the island are choked with motor-vehicles driven by French-speakers who have chosen to live off island. The appropriate unit of analysis, instead, should be the greater Montreal area—In which case, the number of French speakers clearly outnumbers the English-speakers and the third language speakers combined.

[166]      Moreover, even if the analysis was limited to the island of Montreal, Mr Veltman explained that the declining number of French speakers is no reason for alarm. The competition to the French language on the island of Montreal is English and not the myriad of languages spoken by the Allophone group. Moreover, in a generation or two the Allophones living on the island of Montreal will be totally assimilated into the French majority.

—Stability in the French-speaking population of Quebec

[167]     Despite cries from the language pessimists that the sky is falling, the percentage of French-speakers since 1871 has never fallen below the 80% mark. In 2001 81.4% of the population spoke French as a mother tongue. Even more important, 83.1% of the population spoke French at home. In an article entitled Vitalité du Français, léthargie de l’anglais: un paradoxe de la situation linguistique au Quebec en 2001, Mr Veltman remarked that the proportion of French speakers (till 2001) had never surpassed the mark of 83% of the Quebec population.[48] The figure attests to the capacity of the French language—in perpetual competition with the English language—to attract its fair share of linguistic transfers from the Allophone group. The trend in favour of French, predicated Mr Veltman, will only continue.[49]

—Substantial growth in terms of absolute numbers of the French-speaking population in Quebec

[168]     Both Mr. Veltman and Mr. Tyler insisted that the growth in the number of French speakers attests to the vitality of the language. In 1971, the French speakers in the province numbered 4 734 965. In 2011, their numbers grew to 6 344 785.[50] Given a net increase of circa 1.6 million people, Mr Veltman failed to see how the French language could be vulnerable in any sense of the term :

Vu la croissance d’environ 1.6 millions de francophones de 1971 à 2011, il serait illogique de caractériser ce groupe de vulnérable[51].

The case for the vulnerability of the French language (basic points)

[169]     Mr Termote, the expert called by the Attorney General, agreed that there was some progress in the French language in the past few decades. However, the progress was relatively modest. On the topic of linguistic transfers, Mr Termote noted that the figures showed but marginal gains for the French language. Commenting on table 7 that appears in Mr Veltman’s report, Mr Termote highlighted the fact that between 2006 and 2011 the number of linguistic transfers in favour of French only grew by 10 025 people (from 182 110 to 192 135). On a yearly basis, it works out to roughly 2 000 language transfers per year. Hardly a figure to temper the fears that French is no longer in jeopardy. The figure is further marginalized when one considers that the total Allophone population for Quebec in 2011 numbered 636 215 people. 

[170]     Not without concern, the proportion of linguistic transfers among third language speakers did not reflect the relative weight of French and English speakers in the province. Thus, the English population, though constituting but 10.68% of the population of Quebec, was still able to attract 45% of the linguistic transfers. This disproportionately high figure attests to the attraction of the English language. 

[171]     Much of Mr. Termote’s analysis focused on third language speakers. In a nut-shell, the Allophone population—spurred on by a high fertility rate and by an influx of new immigrants—will continue to increase. The marginal number of linguistic transfers to the French language coupled with a declining birth rate among French speakers cannot compensate for the increasing number of Allophones. Added to the matrix is the fact that linguistic transfers take a long time (possibly two generations). In this context, the French-speaking population of Quebec will inevitably decline.

[172]      While not insensitive to the arguments against using the island of Montreal as a gauge for the state of the French language, Mr Termote pointed out one obvious benefit: it had the advantage of delineating population trends in a specific geographical unit. Urban sprawl, by its very definition implies constant expansion. Where does one draw the bright line that defines the outer limits of the greater Montreal area?

[173]     Moreover, even if one includes the greater Montreal area in the equation, the markers are not always in favour of the French language. One notes that even in the off-island communities, third language speakers are increasing in relative weight while the number of French-speakers are decreasing.[52]

Decision on the vulnerability of the French language

—Duelling experts and the burden of proof

[174]     For the Court, both experts appear to be imminently qualified to voice their opinion on the demo-linguistic situation in Quebec. They are both university professors who have published extensively in the field of linguistic demography. As concerns their testimony in Court, both experts presented and defended their respective points of view with clear and cogent arguments.

[175]     The methodology, body of work and qualifications of one expert were criticized by the opposing expert. Mr Veltman, for instance, noted the errors committed by his colleague in previous population forecasts. He even suggested that Mr Termote’s academic background in economics—rather than sociology or social linguistics—tainted his understanding of the demographic data. Mr Termote, for his part, launched similar volleys against his colleague: Firstly, he pointed to the forecasting errors committed by his colleague in past studies.  Secondly, he was highly critical of Mr Veltman’s methodology which consisted (so Mr Termote claimed) in plotting numbers on a graph and drawing a line through the numbers in order to describe a trend and make a population forecast[53]. Serious demographic study, explained Mr Termote, has to go beyond mere extrapolation from the numbers on a graph. Instead, one must attempt to understand the many variables that influence population movement. Once the variables are grasped and understood, one could make a better prediction of population trends for the future.[54]

[176]      The decision of the Court regarding the vulnerability of the French language will not be based on an assessment of the different demographic methods used by the experts. For that matter, the Court does not have the expertise to adjudicate on what is or is not the appropriate demographic method to resolve the issue(s) at bar. Instead, the decision of the Court will be predicated upon the assessment of the evidence as a whole (which includes both the statistical data and the testimony of the experts). No regard will be made for the relative merits of one method as opposed to another in the field of demography. 

[177]     Also, in assessing the weight of the evidence, the Court must be mindful of the fact that the burden of proof lies with the petitioners-defendants. Moreover, the burden imposed upon the petitioners-defendants goes beyond a simple balance of probabilities. Instead they must clearly establish that the situation of the French language has radically changed since the decision of the Supreme Court in Ford and Devine. In other words, the evidence has to show that the French language is no longer in danger and in need of the protection of special legislation designed to give it greater visibility in the linguistic landscape.

[178]     In W.F.H., Justice Bellavance justified the heavy burden imposed on the petitioners who wish to challenge anew the signs law on two grounds: (i) the policy suggestion made by the Ford Court was intended to provide long-term stability and certainty with regards to the language of signs and (ii) the policy suggestion in Ford (though made in the form of an obiter) constitutes binding precedent.

[179]      Regarding the long-term effects of the policy suggestion made by the Supreme court in Ford, Justice Bellavance, at page 15, remarked that :

Dans ce type de dossier, les faits soumis ne sont pas aussi précis que dans des dossiers civils où l’on parlera alors plutôt de chose jugée entre les parties au litige. Ce sont des faits sociaux, généraux et publics, qui permettent à la Cour suprême d’arrêter le droit en établissant des principes qui guideront, et dans une certaine mesure, lieront une société pour un certain temps.   (Emphasis added)

[180]     In the same vein, at page 35 of his decision, Justice Bellavance repeated that the policy suggestion of the Supreme Court in Ford was intended to provide stability over a long period of time :

Avec égards pour l’opinion contraire, sous réserve d’une preuve démontrant des changements dans les faits, la décision de la Cour suprême dans Ford n’était pas une décision avec un effet de six mois ou un an seulement; c’était une décision avec un effet qu’on voulait pour un bon bout de temps.

[181]     Given that the objective of the Supreme Court was long-term stability regarding the language of signs, a new challenge to the impugned sections of the law would have to be based on solid, compelling and unequivocal evidence that the French language in Quebec is no longer vulnerable.

[182]     On the matter of stare decisis, Justice Bellavance held that the obiter of the Supreme Court in Ford had the authority of binding precedent.  As the Attorney General already proved or justified its case in Ford, he should not be obliged to refresh the evidence every time a new challenger to the signs law throws down the gauntlet. Instead, it would be up to the challenger to adduce compelling evidence that the legislation protecting the French language is no longer justified. At page 26 of his decision, Justice Bellavance explained the heavy burden imposed upon the new challenger as follows :

Une fois cette analyse faite et qu’une décision favorable est rendue en faveur du législateur, pourquoi lui appartiendrait-il de démontrer qu’il a toujours raison? Pourquoi n’appartiendrait-il pas à celui qui veut ramener le débat et qui prétend disposer d’une preuve forte, persuasive, solide et convaincante, d’établir en premier cette preuve, que pourra alors contrer le législateur s’il l’estime pertinent, et ce avec les meilleures preuves disponibles au moment de cette seconde analyse?

[183]     For Justice Bellavance, Imposing such a burden on the new challenger to the signs law would serve two purposes: It would assure stability in the decisions rendered by the Court while allowing for a certain flexibility in the event of a significant change of the factual context.[55] 

Assessment

[184]     Considering all of the above, does the Court have before it clear and convincing evidence that the French language is no longer in peril? With the greatest respect for the opposing view, the Court holds that the petitioners have failed to meet their evidentiary burden.

[185]     Like Mr Termote, the Court accepts that the French language has made some progress in recent decades, especially in what concerns linguistic transfers in favour of French among Allophones. However, the Court also agrees with Mr. Termote that the said linguistic transfers are too small to significantly change the vulnerable status of the French language. 

[186]     The Court was also persuaded by Mr Termote’s remarks on how the declining birth rate among French-speakers coupled with the growing number of third language speakers places the French language at a disadvantage.

[187]     Regarding the island of Montreal as a barometer for the status of the French language in Quebec, the Court makes the following comments: It is sensitive to Mr. Veltman’s view that the competition for French on the island of Montreal is English and not the host of languages spoken by an increasing number of Allophones. Surely, third languages such as Urdu, Tamil, Mandarin, Arabic, Spanish, Italian and Greek (to name but a few) cannot pose a threat to the viability of the French language. Also, the Court agrees with Mr Veltman’s view that the status of the French language is skewed if one’s analysis is limited only to the island of Montreal.  A study that includes the greater Montreal area would show that French is spoken by the majority of the population.

[188]     This being said, one cannot deny that the island of Montreal is where the majority of third language speakers first settle and work. For the new immigrant, the culture and the lure of the off-island suburbs are years away. Mr Termote already pointed out that environment plays a significant part in the assimilation of immigrants. Unfortunately, the environment for the new immigrant on the island of Montreal is less and less French.

[189]      Though English is the main competitor to French on the island of Montreal, one cannot discount the lure of the English language for third-language speakers. As already noted, the English language, though comprising less than 11 percent of the total population of the province attracts almost half of the linguistic transfers. 

[190]     In Ford, the Supreme Court identified four causal factors that threatened the position of the French language :

(a) the declining birth rate of Quebec francophone’s resulting in a decline in the Quebec francophone proportion of the Canadian population as a whole; (b) the decline of the francophone population outside Quebec as a result of assimilation; (c) the greater rate of assimilation of immigrants to Quebec by the anglophone community of Quebec; and (d) the continuing dominance of English at the higher levels of the economic sector. (page 778)

[191]     A quick examination of each factor indicates that the situation hasn’t changed much in the 26 years since the Court’s decision in Ford.

—Declining birth rate :

[192]     The birth rate of French-speaking women is still low. At 1.6 births per woman, the rate is well below the replacement mark of 2.1.

—The decline of the Francophone population outside Quebec as a result of assimilation

[193]     Mr. Tyler’s noted that the absolute number of French speakers in Canada has increased. However, the increase in absolute numbers is small consolation when one considers that the relative weight (in terms of percentages) of French speakers in the country continues to decline. In 1931, 7.2% of the population of Canada outside Québec had French as a mother-tongue. This proportion dropped below 5.0% in 1991.

[194]     If one looks at the language of use rather than mother-tongue, the decline of the French language outside of Quebec is even more alarming: From 1971 to 1991 the proportion of Francophone’s outside Québec fell from 4.4% to 3.2%. Outside of Quebec, the French language seems destined for a marginal status.  Even Mr Veltman, the expert witness for the petitioners-defendants, conceded that the fate of French speakers outside of Quebec is assimilation.

—The greater rate of assimilation of immigrants to Quebec by the Anglophone community of Quebec

[195]     As discussed earlier, the switch in linguistic transfers among Allophones for French does not significantly change the vulnerability of the French language. The numbers of linguistic transfers are far too few when considering the increasing numbers of third language speakers in the province. Not without concern, a linguistic transfer from the Allophone group to the French language could take up to two generations. 

—The continuing dominance of English at the higher levels of the economic sector

[196]     This situation may very well have changed. However, the petitioners-defendants brought no evidence to this effect.

—Changing visual landscape

[197]     After setting out the four factors that threatened the French language, the Supreme Court (in Ford) remarked that the visual landscape (visage linguistique) in Quebec did not reflect the fact that its inhabitants were mostly French speaking. Also, the linguistic landscape gave the impression that French was a secondary language—success came only through the mastery of English.

[198]     This Court agrees that the visual landscape in Quebec has changed significantly since the decisions of the Supreme Court in Ford and Devine. With the exception of commercial signs that are trade-mark protected, the visual landscape is predominantly unilingual French. That change, of course, is due to the signs provisions of the CFL. 

[199]     For that matter—regarding the improved situation of the French language—Justice Bellavance noted that it may be due to the signs provisions of the CFL.[56] There is an obvious incongruity in using the success of the signs provisions of the CFL as fodder for its dismantling. The CFL cannot become a victim of its own success.

[200]     In sum, the nature of the debate in the present matter is similar to the facts and issues discussed and answered by the Supreme Court in Ford and Devine. In the absence of clear and compelling evidence that the situation of the French language in Quebec has changed, this Court cannot review the conclusions of the Supreme Court in Ford and Devine

—Judicial notice that the French language in Quebec is vulnerable

[201]     In the presentation of his arguments, the Attorney General made passing remarks to the effect that the Court could take judicial knowledge of the vulnerability of the French language. The remarks, or course, were predicated upon Quebec’s unique geographical situation as the only enclave of French speakers in an overwhelming English speaking North America. The 6.3 million French speakers in Quebec are surrounded on all sides by an English speaking population that numbers well over 300,000,000.[57] In terms of relative weight, the French speakers represent but a mere two per cent of the North American population.[58]  Though some may be tired of hearing it, the metaphor that depicts Quebec as an island of French in an ocean of English is totally appropriate.

[202]     With the advantage of sheer numbers, the English language in North America dominates in business, science and technology and in popular culture. It is difficult for anyone on the continent to be insulated from the allure of the English language. As the French language can scarcely compete on even terms with the English language, legislation in favour of French is imperative.

[203]     The vulnerable position of the French language in North America and the need for legislation to protect and promote it was eloquently stated by the drafters of the Gendron commission :

In America, French is a fringe language. As such, its use is restricted even in areas where it is spoken by a majority of the population. This situation requires a clear policy: French can survive and flourish on the North American continent only with a maximum of opportunity and protection throughout Québec; and this can be accomplished only by making it a useful communication instrument for all the people of this area.(...) In the vast economic areas made up of Canada and the United States, French is defenceless in the struggle to impose its utility. This situation is not about to change. Thus in Québec, the vigour and dynamism of French can be ensured only through government support. Failing this, the odds in the match between French and English will remain too one-sided. This government action should aim at establishing French as the common language of Quebecers by making it useful and necessary for everyone in work communication.

[204]     In R. v. Find, 2001 SCC (CanLII), [2001] 1 S.C.R. 863, [2001] S.C.J. No. 34, the Supreme Court of Canada identified the parameters of judicial notice, at par. 48, as follows :

[T]herefore, the threshold for judicial notice is strict: a court may properly take judicial notice of facts that are either: (1) so notorious or generally accepted as not to be the subject of debate among reasonable persons; or (2) capable of immediate and accurate demonstration by resort to readily accessible sources of indisputable accuracy.

[205]     Given this conception, the facts that are properly the subject of judicial notice are not open to rebuttal. Social facts may rise to the level of common knowledge, or at least draw a consensus. More often, though, they are debatable or even highly controversial, in part because of the inexact and fluctuating nature of their subject—society.[59]

[206]     To take judicial knowledge of the vulnerability of the French language in Quebec, the Court would have to conclude that the social fact is so well known that it may be subject to judicial notice without proof. In the present matter, two learned experts in the field of demo-linguistics examined the data and arrived at diametrically opposing conclusions on the vulnerability of the French language. Given the said opposing views, the Court is reluctant to hold that the vulnerability of the French language satisfies the criteria of notoriety or indisputability.

[207]     Moreover, the scope of judicial notice is narrowed where the social fact comes close to the dispositive issue in the case.  In R. v. Spence, [2005] 3 SCR 458, 2005 SCC 71 (CanLII), Justice Binnie cautioned that judicial notice of a general social fact should not, by analytic inertia, slipstream into judicial notice of a particular adjudicative application of that fact which disposes of the case at hand.[60]  In short, more stringent proof may be called for of facts that are close to the center of the controversy between the parties.[61]

[208]     At par. 68 of Spence, Justice Binnie explained that the preferred method for presenting evidence in the sphere of social sciences is through the testimony of an expert witness :

I would add this comment: in R. v. Malmo-Levine, [2003] 3 S.C.R. 571, 2003 SCC 74 (CanLII), a majority of our Court expressed a preference for social science evidence to be presented through an expert witness who could be cross-examined as to the value and weight to be given to such studies and reports.  This is the approach that had been taken by the litigants in Sharpe, Little Sisters, Malmo-Levine itself and subsequently in Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), [2004] 1 S.C.R. 76, 2004 SCC 4 (CanLII).  We said in Malmo-Levine that.

courts should nevertheless proceed cautiously to take judicial notice even as “legislative facts” of matters . . . are reasonably open to dispute, particularly where they relate to an issue that could be dispositive . . . .

[209]     Taking judicial notice that the French language is vulnerable is dispositive of the issue(s) before the Court. As such, it is preferable to establish the social fact through expert evidence, rather than the Court taking judicial notice of that fact.

[210]     One should note, however, that the decision of Justice Bellavance in W.F.H. assumed that certain immutable factors—such as the dominance of the English language in North American and geography (Quebec is surrounded on all sides by English speakers) presented a threat to the French language. At pages 42 and 43 , after explaining why Quebec cannot be compared to other jurisdictions in the world, he stated that :

Avec égards, je ne crois pas que le Québec se compare à l’ensemble ou même à chacun des pays visés dans le rapport.

…Je ne crois pas enfreindre les limites de la connaissance judiciaire en déclarant que le Québec n’aura probablement jamais la croissance fulgurante de l’Ontario et que son poids démographique à titre de province canadienne, diminuera continuellement.

Le Québec, par sa population francophone de 6 000 000 entourée de tout côté d’une population de 300 000 000 de personnes qui parlent l’anglais, le langage dominat et le plus économiquement important de la planète, ne peut être comparé aux états ciblés par le rapport.

Le Québec n’a pas à ses frontières, comme les Suisses de langues allemande, française et italienne, un pays voisin et limitrophe, unilingue et populeux, qui parle sa langue. 

[211]     The Court of Appeal, for its part, stated that the French language will always be vulnerable. At par. 73 of the decision, Justice Biron stated :

Même si l'on acceptait l'hypothèse que la situation s'est améliorée quant aux facteurs c) et d), il n'en demeure pas moins que la langue française au Québec est toujours vulnérable.  La mesure prévue par l'article 58 a pour but d'améliorer le visage français du Québec.  Je ne crois pas qu'une telle mesure qui se justifiait en 1988 en regard de l'article premier et de l'article 9.1 ne se justifie plus aujourd'hui à cause du passage du temps. (Emphasis added)

[212]     The remarks of the Court of Appeal were not made in response to evidence filed by the parties. As both parties claimed that the burden of proof lay with their respective adversaries, no proof was presented on the vulnerability of the French language. The phrase from Justice Biron—«la langue française au Québec est toujours vulnérable»—has to be understood as a comment to the effect that the vulnerability of the French language is common knowledge.

[213]     In spite of the remarks of the Superior Court and the Court of Appeal in W.F.H., this Court will not go so far as to rule that the vulnerability of the French language comes within the sphere of judicial knowledge. This being said, certain social facts are beyond dispute: namely, the dominance of the English language on the North American continent. Common sense also dictates that the English language—given its dominance in all facets of human activity exerts a great influence on mass culture and society. The same common sense dictates that the French language cannot compete on even terms with the English language in the North American context.

[214]     The Court’s observations regarding the all-pervasive influence of English in North America are not adjudicative—they do not dispose of the issue(s) in the case(s). In the years to come, nothing precludes a new challenger to the impugned sections of the CFL from presenting clear and convincing evidence that the French language is no longer in need of protective measures. For now, however, the evidence presented by the petitioners-defendants does not convince the Court that the situation of the  French language—judged vulnerable in 1988 by the Supreme Court of Canada and in 2000 and 2001 by the Quebec Superior court and the Quebec Court of Appeal respectively—is no longer in jeopardy.   

 

Equality rights

[215]     The issue of equality rights was also raised by the petitioners in the Ford case. However, the Court’s decision to the effect that the signs legislation constituted a violation of freedom of expression that could not be justified by the saving provisions of the Canadian and Quebec Charters meant that there was no need to address the equality issue. 

[216]     In Devine, however, the legislation under scrutiny dealt with the concurrent or equal use of French and another language in certain commercial matters. As the Ford Court already decided that the concurrent use of French along with another language—even the marked predominant of French alongside another language—constituted a reasonable limit to freedom of expression, the Devine Court could had no choice but to address the equality issue.  

[217]     The Supreme Court’s analysis of the equality rights guaranteed at s. 15 of the Canadian Charter, however, did not include a substantive discussion of the issues. The Court simply held that the s. 1 limitations discussed in Ford were equally applicable to s. 15. Thus, assuming a prima facie breach of s. 15, the obligatory joint use of French would meet the test of s. 1.

[218]     The Supreme Court, however, could not so easily avoid an analysis of the equality right guaranteed at s. 10 of the Quebec Charter. Unlike the other fundamental rights set out in the Quebec Charter, the right to equality is a stand alone provision and is not subject to the justifiable limits set out at s. 9.1 of the Charter. However, the Court in Devine interpreted the equality rights at s. 10 in relation to the right to freedom of expression set out at s. 3 of the Quebec Charter. On the basis of this narrow interpretation, the Court held that the distinction based on language did not nullify the rights guaranteed under s. 3 of the Charter :

While it is true that s. 9.1 does not apply to the principle of equality enshrined in s. 10, it does apply to the guarantee of free expression enshrined in s. 3. Whenever it is alleged that a distinction on a ground prohibited by s. 10 has the effect of impairing or nullifying a right under s. 3, the scope of s. 3 must still be determined in light of s. 9.1. Where, as here, s. 9.1 operates to limit the scope of freedom of expression guaranteed under s. 3, s. 10 cannot be invoked to circumvent those reasonable limits and to substitute an absolute guarantee of free expression. (page 818)

[219]     In other words, as freedom of expression was justifiably limited under s. 9.1 of the Quebec Charter, one could not claim that the equal recognition of that freedom was infringed. Viewed in this light, s. 10 does not provide for an absolute equality right that is free from the constraints, justifications or limitations of s. 9.1.

[220]     As the limitations in Devine were justified by the vulnerability of the French language, the equality issue before the Court will also depend on an assessment of the present-day status of the French language in Quebec. Given that the Court has already ruled that the French language remains vulnerable, the equality challenge presented by the petitioners-defendants must be dismissed.

[221]     This being said, the Court will still undertake to examine the equality rights vindicated by the petitioners-defendants. In doing so, the Court is merely following the lead of Justice Bellavance in W.F.H. While Justice Bellavance could have easily dismissed the petitioner’s arguments on the authority of Devine (that the equality rights are subject to the same limitations as freedom of expression), he also undertook a substantive analysis of the equality rights protected in both Charters.

[222]     For the most part, Justice Bellavance’s substantive analysis of S. 15 drew on the authority of the of the Supreme Court’s decision in Law v. Canada (Minister of Employment and Immigration), [1999] 1 SCR 497, 1999 CanLII 675 (SCC)-—for discrimination to be found, it must be determined if the burden or denial of benefit harms an individual’s dignity. As to the difficult question of what constitutes human dignity, Justice Bellavance quoted the following passage from Justice Iacobucci’s decision in Law :

What is human dignity?  There can be different conceptions of what human dignity means.  For the purpose of analysis under s. 15(1) of the Charter, however, the jurisprudence of this Court reflects a specific, albeit non-exhaustive, definition.  As noted by Lamer C.J. in Rodriguez v. British Columbia (Attorney General), 1993 CanLII 75 (SCC), [1993] 3 S.C.R. 519, at p. 554, the equality guarantee in s. 15(1) is concerned with the realization of personal autonomy and self-determination.  Human dignity means that an individual or group feels self-respect and self-worth.  It is concerned with physical and psychological integrity and empowerment.  Human dignity is harmed by unfair treatment premised upon personal traits or circumstances which do not relate to individual needs, capacities, or merits. It is enhanced by laws which are sensitive to the needs, capacities, and merits of different individuals, taking into account the context underlying their differences.  Human dignity is harmed when individuals and groups are marginalized, ignored, or devalued, and is enhanced when laws recognize the full place of all individuals and groups within Canadian society. 

(Par. 53 in Law; page 59 in W.F.H. The underlined portion of the above quote is from Justice Bellavance’s decision)

[223]     Viewed in this light, not all distinctions created by the law constitute discrimination pursuant to s. 15. The overriding question is whether or not the distinction or difference in treatment marginalizes, ignores or devalues an individual’s sense of self-respect and self-worth. As Justice Iacobbuci’s explained at par 51 in Law (quoted at page 58 of Justice Bellavance’s decision in W.F.H.) :

Alternatively, differential treatment will not likely constitute discrimination within the purpose of s. 15(1) where it does not violate the human dignity or freedom of a person or group in this way, and in particular where the differential treatment also assists in ameliorating the position of the disadvantaged within Canadian society.

[224]     The contextual factors which can help in an analysis of whether the imputed distinction violates human dignity were described by Justice Iacobucci at par. 39 of his decision and reproduced at page 58 of Justice Bellavance’s decision in W.F.H.  :

In my view, the proper approach to analyzing a claim of discrimination under s. 15(1) of the Charter involves a synthesis of these various articulations.  Following upon the analysis in Andrews, supra, and the two-step framework set out in Egan, supra, and Miron, supra, among other cases, a court that is called upon to determine a discrimination claim under s. 15(1) should make the following three broad inquiries.  First, does the impugned law (a) draw a formal distinction between the claimant and others on the basis of one or more personal characteristics, or (b) fail to take into account the claimant’s already disadvantaged position within Canadian society resulting in substantively differential treatment between the claimant and others on the basis of one or more personal characteristics?  If so, there is differential treatment for the purpose of s. 15(1). Second, was the claimant subject to differential treatment on the basis of one or more of the enumerated and analogous grounds?  And third, does the differential treatment discriminate in a substantive sense, bringing into play the purpose of s. 15(1) of the Charter in remedying such ills as prejudice, stereotyping, and historical disadvantage?  The second and third inquiries are concerned with whether the differential treatment constitutes discrimination in the substantive sense intended by s. 15(1).

[225]     Justice Bellvance also highlighted Justice Iacobucci’s comments regarding the purpose to the equality rights guaranteed at s. 15 of the Charter :

What is the purpose of the s. 15(1) equality guarantee?  There is great continuity in the jurisprudence of this Court on this issue.  In Andrews, supra, all judges who wrote advanced largely the same view.  McIntyre J. stated, at p. 171, that the purpose of s. 15 is to promote “a society in which all are secure in the knowledge that they are recognized at law as human beings equally deserving of concern, respect and consideration”.  The provision is a guarantee against the evil of oppression, he explained at pp. 180-81, designed to remedy the imposition of unfair limitations upon opportunities, particularly for those persons or groups who have been subject to historical disadvantage, prejudice, and stereotyping.

(par 39 in Law; page 58 in Justice Bellavance’s decision; underlining in Justice Bellavance’s decision)

[226]     Turning to the equality issue in the matter before him, Justice Bellavance noted that the objective of the impugned legislation was to give the French language an important visual impact and not to diminish the English language.[62] Also, the signs legislation fulfilled the long-term needs of a language that has been historically disadvantaged in North America.[63]  In the end, the signs legislation attempts to establish a linguistic equilibrium in which the advantages (in terms of the protection of the French language) far outweigh the inconveniences.[64]

[227]     Not without importance, the amended version of s. 58 no longer imposed a blanket ban on all signs other than French. The merchant was now free to display a commercial sign in the language of his choice so long as French was markedly predominant. Thus, the extent of the rights violations was attenuated.

[228]     Given this context, how does an Anglophone merchant establish that the signs law constitutes a violation of his s. 15 rights? Applying the principles set out in Law, Justice Bellavance held that a case for discrimination must establish that the impugned legislation renders the English community less worthy of respect and consideration.[65] Ideally, the evidence would have to show that the English community has been historically marginalized, subordinated, disfavoured, stigmatized, or excluded from the whole of society (as was seen with certain groups in which the Supreme Court applied s. 15  of the Charter with corrective remedies).[66]

[229]     The evidence for discrimination in WF.H.  was limited to the testimony of the two share-holders in the company who explained that the posting of a bilingual sign (affording equal space to French and English) simply reflected the fact that French and English citizens are all equal. Though not articulated as such, the shareholders wanted to convey the message that they shouldn’t be diminished as citizens simply on account of the fact that they are Anglophones. In the words of one share-holder: «I’m as equal as a French person is and a French person is as equal as I am, so I made it (the sign) equal. [67]»

[230]     For Justice Bellavance, the vexations expressed by the two shareholders fell far short of the evidence needed to establish a s. 15 violation. To explain the burden imposed upon the s. 15 claimant, he quoted the following passage from Justice Iacobucci’s decision in Law :

The objective component means that it is not sufficient, in order to ground a s. 15(1) claim, for a claimant simply to assert, without more, that his or her dignity has been adversely affected by a law.

(par 59 in Law; page 65 in Les Entreprises W.F.H.)

[231]     In sum, a s.15 claimant has to establish that the uneven application of the law constituted an affront to his or her dignity.

[232]     The Court of Appeal accepted Justice Bellavance’s s. 15 analysis on all counts. To begin, the Court of Appeal agreed that the Supreme Court’s decision in Devine was sufficient to settle the equality issue. Thus, assuming that s. 58 in its amended form (marked predominance) infringed s. 15 of the Canadian Charter and s. 10 of the Quebec Charter, the infringement would have been justified by virtue of the limitation clauses in both Charters.

[233]     On a substantive level, the Court of Appeal agreed with Justice Bellavance that a difference in treatment imputed by the application of the law does not necessarily mean there was discrimination. Writing for the Court, Justice Biron explained that a s.15 claimant has to prove that the differential treatment amounted to a violation of his dignity :

Il est clair que l'art. 58 impose une différence de traitement entre un francophone et une personne de langue maternelle différente. En effet, un francophone peut se contenter de faire sa publicité exclusivement dans sa langue maternelle, alors qu'une personne d'une autre langue doit ajouter au texte dans sa langue une version française nettement prédominante. Cependant, l'arrêt Law établit clairement qu'une différence de traitement n'est pas nécessairement synonyme de discrimination prohibée.  Tel qu'établi par le par. 83 de l'arrêt Law, la première question que se posera le tribunal dans chaque affaire sera de savoir si une atteinte à la dignité humaine a été démontrée, compte tenu des contextes historique, social, politique et juridique dans lesquels l'allégation est formulée.

[234]     The afore-mentioned quote from Justice Biron was immediately followed by comments regarding the purpose of the CFL :

Il est reconnu dans Ford, à la p. 778, que la politique linguistique sous-tendant la Charte de la langue française poursuit un objectif important et légitime. Cet objectif est décrit au préambule :  assurer la qualité et le rayonnement de la langue française. À la p. 777 de Ford, la Cour suprême affirme que les documents mis en preuve établissent amplement l'importance de l'objectif législatif de la Charte et le fait qu'elle est destinée à répondre à un besoin urgent et réel.

[235]     By emphasizing the purpose of the language legislation, the Court of Appeal was able to downplay the impact of differential treatment. In this sense, the afore-mentioned quote from Justice Biron mirrors the reasoning of Justice Bellavance regarding the legislation’s objectives: the purpose of the law is not to diminish English, but to give French a greater visual impact. The impugned sections of the CFL were merely meant to help a language that has been historically disadvantaged. Viewed in this light, it is difficult for an English merchant to claim that he or she is diminished or less worthy on account of the differential effect of the law.

[236]     Finally, Justice Biron noted that the amended signs legislation allows the merchant to advertise in the language of his or her choice. The only obligation the law imposes upon him or her is to add onto the commercial sign or advertisement a French version which is markedly predominant. Just like Justice Bellavance, Justice Biron could not see how this obligation could constitute a violation of the English merchant’s dignity.[68]

 

—Application to the case at bar

 

[237]     Five of the merchants accused in the present proceedings testified before the Court. In essence, they described how the imputed application of the signs law made them (members of the English community in Quebec) feel marginalized, ignored, and less worthy of self-respect and self-worth.

[238]     Miss Danielle Besnos, a co-owner of Mundi Canada (one of the defendants in the present matter) expressed in the following terms the manner in which she felt diminished and discriminated upon on account of the signs legislation :

I felt that the law was very discriminatory. I don’t think that you better yourself as an individual or as a society by pointing fingers and making someone lesser than, you know, make your language smaller than ours. We’re all equal, here, we’re all Canadian citizens, and it’s an equal society (sic.).

[239]     In another passage, she expanded on the inequities wrought by the signs law on members of the English community :

The implication (is)…that you are lesser than, that your language doesn’t matter, that you’re not as important in Quebec, you have to be smaller. I have issue with that as a Canadian and a Quebec citizen…and it was humiliating, and it still is humiliating (sic.).

[240]     Miss Murielle Reid, along with her husband), was the co-owner of a small business that distributed maple syrup products across North America. She did specify, however, that most of her customers were in Western Canada and that she did very little business in Quebec. She was prosecuted pursuant to s. 52 of the CFL for not having a French version of her internet website. The infraction dates back to 1999 and her commercial venture (no more than a cottage industry) closed a short time thereafter.

[241]     Her comments on the application of the law were essentially limited to the issue of individual rights. As a Canadian citizen, she voiced her frustration by asserting that violations to individual freedom (such as those wrought by the CFL) would not be tolerated anywhere else in the country :

…This is our Charter of Rights, I mean, first of all, we’re Canadians, and secondly, we’re Quebecers. Quebec, we are part of this country, and this does not exist in the rest of the country. Why it’s existing here? I’m sorry, but I feel that this is an infringement of our rights (sic.). 

[242]     Another defendant, Mr. Thomas Filgiano, was (and still is) the principle owner of a moving company, «Meldrum, the mover». He ran afoul with the CFL’s sign provisions (s.58) for having commercial bilingual signs that afforded equal space to French and English.

[243]     Not unlike the other defendants-petitioners, Mr. Filgiano felt humiliated, diminished and marginalized by the application of the signs law.  Asked to explain his motivation in challenging the signs law, he answered :

…I just felt that I didn’t want to live in a society whereby I was just going to pay the fine and say « Yes, sir, yes, sir, can I have some more, sir. » I’m a citizen and I’m proud of being a Quebecer and I don’t want to live under a society whereby people are saying, you know, that you got to live in fear (sic.).

[244]     Similar sentiments were expressed by Mr. Gary Shapiro, a share-holder and administrator of Les Industries Garanties/Guaranteed Industries. Asked to comment on how the signs legislation affected his dignity as a person, he replied:

Well, there’s no doubt we feel like second-class citizens and I don’tt want to get into the political aspect, but it’s just not right. This world is gone totally open and global and discrimination just doesn’t exist on black and white…(sic).

It affected me in the sense that I did not want to be a second-class citizen in my own city.

[245]     Asked about his motivation in contesting the signs provisions of the C.F.L., he answered:

I believe that if you don’t stand up for your rights, nobody else will stand up for your rights.

[246]     Generally speaking, the defendants-petitioners did not fit the category of angry Anglophones oblivious the fact that they live in the only part of North America where the majority of its inhabitants are French speaking. Nor were they insensitive to the importance of protecting and promoting the French language.  Mr Filgiano, for instance, offered the following explanation for giving priority to the French portion of his bilingual sign :

Quebec is a French…is primarily a French-speaking province. I’m very proud of being a Quebecer. I think French should have predominance, and that’s how we put it on our truck, as a predominance (sic.).

[247]     Sensitive to the fact that the majority culture in Quebec is French, he sent his children to French schools.

[248]     Finally, he waxed eloquent on the manner in which all segments of Quebec society (not just Francophone, but Anglophone and Allophone as well) have recognized the importance of protecting the French language :

Any reasonable person, whether or not they’re English, French or whatever other culture that they come from, it’s reasonable to protect the French language. I don’t think there’s anybody in this province that would disagree with that. And predominance of the French language, I think, is very, very important. Equality of the two official languages is also extremely important (sic.).

[249]     Though Mr. Filgiano recognized the importance of protecting French, he simply couldn’t agree with the means used by the legislator. Though not phrased as such, he conveyed the message that one language (English) did not have to be diminished in order to protect and promote another language (French).

[250]     The evidence in the cases at bar is not substantially different from the evidence heard before justice Bellavance in W.F.H. Not unlike the shareholders in W.F.H., the defendants-petitioners in the cases at bar described how they felt diminished, marginalized and less worthy of respect on account of the application of the signs law. The evidence before Justice Bellavance was insufficient to establish loss of dignity on account of the application of the signs law. As the evidence on dignity in the cases before the bar is fundamentally similar to that presented in W.F.H, there can be no basis for a s. 15 challenge.

—Recent developments on the equality issue: the marginalization of «human dignity» as the focal point of a s. 15 analysis

[251]     When the Superior Court and the Court of Appeal rendered their decisions in W.F.H. (the years 2000 and 2001, respectively), the leading case on equality was Law. Since then, the Supreme Court has reshaped the analytical framework for the equality issue—more particularly, the role of «human dignity» in defining discrimination has been marginalized.

[252]     The dignity requirement was widely criticized as too nebulous or elusive. Moreover, the obligation of proving that one’s dignity was demeaned placed an unreasonable burden on the person seeking to prove that his or her s. 15 rights have been violated.

[253]     Nine years after its decision in Law,  the Supreme Court addressed the said criticism in R. v. Kapp, [2008] 2 SCR 483, 2008 SCC 41 (CanLII) :

[A]s critics have pointed out, human dignity is an abstract and subjective notion that, even with the guidance of the four contextual factors, cannot only become confusing and difficult to apply; it has also proven to be an additional burden on equality claimants, rather than the philosophical enhancement it was intended to be. Criticism has also accrued for the way Law has allowed formalism of some of the Court’s post-Andrews jurisprudence to resurface in the form of an artificial comparator analysis focusing on treating likes alike.

[254]     In Kapp,  the Court attempted to bring the s. 15 test back in line with an earlier decision in Andrews[69], refocusing equality claims on two main issues : (1) Does the law create a distinction based on an enumerated or analogous ground? (2) Does the distinction create a disadvantage by perpetuating prejudice or stereotyping?

[255]     Though the Court retreated from the human dignity paradigm in Kapp as the central issue in a s. 15 challenge, it did not specifically reject it as a factor either. For that matter, the Court in Kapp attempted to reconcile its decisions in Andrews and in Law by emphasising that the two tests were focused on the same goal: combating discrimination, defined in terms of perpetuating disadvantage and stereotyping. As the Court explained at par. 24 in Kapp:

The four factors cited in Law are based on and relate to the identification in Andrews of perpetuation of disadvantage and stereotyping as the primary indicators of discrimination. Pre-existing disadvantage and the nature of the interest affected (factors one and four in Law) go to perpetuation of disadvantage and prejudice, while the second factor deals with stereotyping.  The ameliorative purpose or effect of a law or program (the third factor in Law) goes to whether the purpose is remedial within the meaning of s. 15(2).  (We would suggest, without deciding here, that the third Law factor might also be relevant to the question under s. 15(1) as to whether the effect of the law or program is to perpetuate disadvantage.)

^[256]             In sum, «human dignity» was no longer central to a s. 15 debate. Nor should it be viewed as a separate criterion for the test. Rather, it should be considered as a general factor in deciding a s. 15 challenge. However, the factors set out in Law—designed to assist a Court in determining what constitutes a violation to human dignity—are useful tools in determining whether disadvantage is being perpetuated or stereotyping is occurring. As the Court stated at par. 24 :

The factors cited in Law should not be read literally as if they were legislative dispositions, but as a way of focussing on the central concern of s. 15 identified in Andrews — combating  discrimination, defined in terms of perpetuating disadvantage and stereotyping. 

[257]     In the present matter, the retreat from the human dignity test does not alter the decision of the Court regarding equality. There is nothing in the stated purpose of the law—the protection and promotion of the French language—that perpetuates disadvantage and stereotyping. In promoting the French language via the signs legislation, the law does not promote prejudice or a negative image of the English community. The English merchant is allowed to advertise in his or her own language; the only constraint or obligation imposed by the law is to include in his or her commercial sign a French version that is markedly predominant—or, if we are talking about business forms, catalogues and brochures (s. 52), a French version which is at least equivalent to the English one.  This added burden does not perpetuate a demeaning stereotype.

—Post Kapp analysis of s. 15 and the incidence (if any) to the cases at bar

[258]     In the cases that followed Kapp, the Supreme Court’s s. 15 analysis focussed on the concepts of prejudice and stereotyping, occulting «human dignity» as a factor to be considered.  In Ermineskin Indian Band and Nation v. Canada, [2009] 1 SCR 222, 2009 SCC 9, the s. 15 issue dealt with the provisions of the Indian Act which precluded the Crown from investing royalties for native bands. For the claimants, the law was discriminatory as it deprived people categorized as Indians (according to the Indian Act) of the rights that are available to non-Indians whose property is held in trust by the government. After reiterating the principle that not all differences or distinctions constitute discrimination, Justice Rothenstein, writing for a unanimous Court, confirmed that the test set out in Andrews was the proper basis for analysing a s. 15 claim :

                 As this Court stated in Andrews v. Law Society of British Columbia, 1989 CanLII 2 (SCC), [1989] 1 S.C.R. 143, at p. 182 (restated in R. v. Kapp, 2008 SCC 41 (CanLII), [2008] 2 S.C.R. 483, at para. 28), a complainant must show “not only that he or she is not receiving equal treatment before and under the law or that the law has a differential impact on him or her in the protection or benefit accorded by law but, in addition, must show that the legislative impact of the law is discriminatory” (emphasis added).  The analysis, as established in Andrews, consists of two questions: first, does the law create a distinction based on an enumerated or analogous ground; and second, does the distinction create a disadvantage by perpetuating prejudice or stereotyping.  (underlining in the original) (par. 188)

[259]     Interestingly, the Court in Ermineskin never mentions «human dignity» in its s. 15 analysis. Applying the two-step test set out in Andrews, the Court concluded that there was a distinction between Indians and non-Indians, but that the distinction was not discriminatory.[70]

[260]     In Withler v. Canada (Attorney General), [2011] 1 SCR 396, 2011 SCC 12 (CanLII), the s. 15 claimants were widows  who received reduced death benefits because of their husbands’ ages at the time of death. They argued that the legislation reducing their benefits—The Public Service Superannuation Act and The Canadian Forces Superannuation Act—discriminates on the basis of age and  perpetuates the stereotype that as a person ages he or she becomes less deserving of the benefit or is less worthy of the state’s care and concern.[71]

[261]     One of the difficulties in Withler was identifying a specific comparator group.  As equality is essentially a comparative concept, the s. 15 claimant has to prove that he or she has been discriminated against in comparison to another group identified by the claimant. In Andrews, the Supreme Court described equality as a «comparative concept, the condition of which may only be attained or discerned by the condition of others in the social and political setting in which the question arises.[72]» Similarly, in Hodge v. Canada (Minister of Human Resources Development), [2004] 3 SCR 357, 2004 SCC 65 (CanLII),  the appropriate comparator group was described as one with whom  «the claimant shares the characteristics relevant to qualification for the benefit or burden in question, except for the personal characteristic that is said to be the ground of wrongful discrimination.[73]»

[262]     From the Court’s decision in Hodge, the burden of identifying the comparator group that «mirrors the characteristics of the claimant» fell squarely on the shoulders of the claimant. The Court in Withler recognized that a formal equality analysis based on mirror comparator groups can be detrimental to a substantive analysis of s. 15 equality rights. At par 60, the Court described the pitfalls of the mirror comparator group requirement :

[A] mirror comparator group analysis may fail to capture substantive inequality, may become a search for sameness, may shortcut the second stage of the substantive equality analysis, and may be difficult to apply. In all these ways, such an approach may fail to identify - and, indeed, thwart the identification of - the discrimination at which s. 15 is aimed.

[263]     Then, at par. 63 of the decision, the Court explained the advantages of a new approach where the relevance of comparison depends on the context :

It is unnecessary to pinpoint a particular group that precisely corresponds to the claimant group except for the personal characteristic or characteristics alleged to ground the discrimination.  Provided that the claimant establishes a distinction based on one or more enumerated or analogous grounds, the claim should proceed to the second step of the analysis.  This provides the flexibility required to accommodate claims based on intersecting grounds of discrimination.  It also avoids the problem of eliminating claims at the outset because no precisely corresponding group can be posited.

[264]     The decision of the Court in Withler, however, does not whittle away at the second step of the Andrews test which defined discrimination in terms of perpetuating disadvantage and stereotyping :

The analysis at the second step is an inquiry into whether the law works substantive inequality, by perpetuating disadvantage or prejudice, or by stereotyping in a way that does not correspond to actual characteristics or circumstances. At this step, comparison may bolster the contextual understanding of a claimant’s place within a legislative scheme and society at large, and thus help to determine whether the impugned law or decision perpetuates disadvantage or stereotyping. 

[265]     While a comparative analysis may still be useful, the Court explained that the contextual factors relevant to the substantive equality inquiry at the second step will vary with the nature of the case :

A rigid template risks consideration of irrelevant matters on the one hand, or overlooking relevant considerations on the other…At the end of the day, all factors that are relevant to the analysis should be considered. (par. 66)

[266]     More recently, in Quebec (Attorney General) v. A, [2013] 1 SCR 61, 2013 SCC 5 (CanLII), the Supreme Court modified once again the framework for a s. 15 analysis.  The equality issue before the Court was whether excluding de facto (common law) spouses from the Civil Code of Quebec provisions that mandate property sharing and spousal support when either a marriage or civil union breaks down violates section 15(1) of the Charter.

[267]     Justice Abella, writing for the plurality of the Court (on the s. 15 issue), questioned the wisdom of relying too heavily on prejudice and stereotyping as the markers for discrimination, as opposed to disadvantage and substantive equality more broadly. For Justice Abella, the reliance on prejudice and stereotyping risked overlooking other ways that discrimination and disadvantage manifest themselves. At par. 325 of her decision,  she quoted from Professor Sophia Morea to highlight the inequities of a s. 15 analysis predicated on prejudice and stereotype:

Such a narrow interpretation [whereby a claimant must prove either prejudice or stereotype] will likely have the unfortunate effect of blinding us to other ways in which individuals and groups, that have suffered serious and long-standing disadvantage, can be discriminated against. This would include cases, for instance, that do not involve either overt prejudice or false stereotyping, but do involve oppression or unfair dominance of one group by another, or involve a denial to one group of goods that seem basic or necessary for full participation in Canadian society.

[268]     For Justice Abella, prejudice and stereotype are merely two indicia of discrimination that may help determine whether a distinction violates s. 15 of the Charter, but are not discrete elements that a claimant has to prove. As she explained at par 327 of her judgement :

We must be careful not to treat Kapp and Withler as establishing an additional requirement on s. 15 claimants to prove that a distinction will perpetuate prejudicial or stereotypical attitudes towards them.  Such an approach improperly focuses attention on whether a discriminatory attitude exists, not a discriminatory impact, contrary to Andrews, Kapp and Withler.  In explaining prejudice in Withler, the Court said: “Without attempting to limit the factors that may be useful in assessing a claim of discrimination, it can be said that where the discriminatory effect is said to be the perpetuation of disadvantage or prejudice, evidence that goes to establishing a claimant’s historical position of disadvantage or to demonstrating existing prejudice against the claimant group, as well as the nature of the interest that is affected, will be considered”.

[269]     Moreover, requiring claimants, to prove that a distinction perpetuates negative attitudes about them imposes a largely irrelevant, not to mention ineffable burden upon the claimant (par. 330).

[270]     In the absence of prejudice or stereotyping, what must the s. 15 claimant prove? For Justice Abella, the emphasis of the analysis must be on the impact of the law: Does the differential application of the law create a disadvantage?  Her answer, at paragraphs 356 and 357 highlights the disadvantages faced by de facto couples, such as their economic vulnerability, when compared to married spouses :

The National Assembly enacted economic safeguards for spouses in formal unions based on the need to protect them from the economic consequences of their assumed roles.  Since many spouses in de facto couples exhibit the same functional characteristics as those in formal unions, with the same potential for one partner to be left economically vulnerable or disadvantaged when the relationship ends, their exclusion from similar protections perpetuates historic disadvantage against them based on their marital status. 

There is no need to look for an attitude of prejudice motivating, or created by, the exclusion of de facto couples from the presumptive statutory protections.  Nor need we consider whether the exclusions promote the view that the individual is less capable or worthy of recognition as a human being or citizen — which, as discussed in Kapp, would be difficult to prove.  There is no doubt that attitudes have changed towards de facto unions in Quebec, but what is relevant is not the attitudinal progress towards them, but the continuation of their discriminatory treatment. 

[271]     The minority decision on the equality issue was written by Justice Lebel. For him, the central question is not whether one person receives less than another, but whether one person obtains less than another as a result of prejudice or stereotyping. This is the essence of the wrong or injustice that s. 15(1) is intended to prevent.[74]  At par. 204 of his decision, he set out the analytical framework of a s. 15 analysis; in essence, a synthesis of the Court’s previous decisions in which perpetuation of prejudice and stereotypes are key factors :

In accordance with the general analytical framework for the application of s. 15(1) of the Charter, there are thus two ways for a claimant to show that a law that draws a distinction based on an enumerated or analogous ground is discriminatory.  On the one hand, the claimant can show that the impugned disadvantageous law perpetuates prejudice against members of a group.  On the other hand, the claimant can prove that the disadvantage imposed by the law is based on a stereotype.  Two comments are in order in this regard.  

[272]     Applying the said analytical framework to the facts, Justice Lebel concluded that the claimant could not show that the disadvantage was based on a stereotype. The impugned sections of the Civil Code do not have the effect of sending a message or conveying a negative image regarding de facto spouses.[75] Everyone, including common law spouses, can be subject to the benefits and obligations in the Civil Code of Quebec provided they consent to marriage or a civil union.

[273]     Freedom to contract—a basic principle in the impugned sections of the Civil Code—precludes a finding of prejudice or stereotyping. As he explained at paragraphs 275 and 276 of his decision, excluding de facto couples from the support regimes given to married ones was not discriminatory as it protected their freedom of choice (in essence, their choice not to marry) :

In the case at bar, A has not established that it is stereotypical to believe that couples in a de facto union have chosen not to be bound by the regimes applicable to marriage and civil unions.  The Quebec scheme, the effect of which is to respect each person’s freedom of choice to establish his or her own form of conjugality, and thus to participate or not to participate in the legislative regime of marriage or civil union with its distinct legal consequences, is not based on a stereotype.

In this sense, recognition of the principle of autonomy of the will, which is one of the values underlying the equality guarantee in s. 15 of the Charter, means that the courts must respect choices made by individuals in the exercise of that autonomy. 

[274]     In the end, the minority judges on the s. 15 issue won the day. The deciding vote was cast by the Chief Justice, McLachlin : Though she agreed that the impugned sections of the Civil Code were discriminatory, she ruled that they were saved by s. 1 of the Charter.

[275]     What are the implications of the Supreme Court’s decision in A for the cases at bar when it comes to the equality issue?  More particularly, does it mean that this Court can no longer decide a s. 15 challenge on the basis of whether or not the impugned law perpetuates prejudice or stereotype? One will recall that in an earlier section of this chapter, this Court found that the equality rights of the claimants were not violated. This conclusion was predicated, firstly, on the claimants’ failure to prove that their dignity was affected by the legislation (Law); and, secondly, by their failure to prove that the law perpetuated prejudice or stereotype (Kapp, Ermineskin and Withler, to name but a few).[76] Given that the Supreme Court’s majority decision in A (on the equality issue) appears to have jettisoned the prejudice-stereotype requirement for a s. 15 analysis, must this Court review its original pronouncements?

[276]     For the reasons that follow, this Court holds that the decision of the Supreme Court in A does not exclude a «prejudice-stereotype» analysis in deciding whether or not the equality rights of the claimants were violated.

[277]     Justice Abella’s decision reflected a move toward a more contextual analysis of the existence of substantive discrimination in determining whether a law is discriminatory. If the s. 15 analysis focuses solely on prejudice and stereotype, it may fail to catch a law that has discriminatory effects. Thus, her interpretation of the second step of the section 15 test is centered on examining the negative effects of the law on a specific group. The law clearly imposes a disadvantage on de facto couples as opposed to unmarried couples; this distinction and disadvantage was sufficient to constitute a s. 15 violation :

We must then consider whether the distinction is discriminatory.  That it imposes a disadvantage is clear, in my view:  the law excludes economically vulnerable and dependent de facto spouses from protections considered so fundamental to the welfare of vulnerable married or civil union spouses that one of those protections is presumptive, and the rest are of public order, explicitly overriding the couple’s freedom of contract or choice.  The disadvantage this exclusion perpetuates is an historic one: it continues to deny de facto spouses access to economic remedies they have always been deprived of, remedies the National Assembly considered indispensable for the protection of married and civil union spouses. (par. 349)

[278]     The discrimination complained of in A was not amenable to a «prejudice-stereotype» analysis. Instead, a substantive approach to equality rights required an analysis based on the impact of the discrimination on the affected group. 

[279]     Context is everything. The context in A lent itself to an examination of the impact or disadvantages incurred by de facto spouses as compared to married spouses. Essentially, the consequences for the de facto spouses are limited to economic vulnerability. In the cases at bar, the negative effects of the CFL for English merchants when compared to French merchants cannot be properly assessed in terms of economic vulnerability. The only viable way of assessing the impact of the discrimination in a substantive manner is via the «prejudice-stereotype» analysis.

[280]      Justice Abella’s decision, moreover, still leaves room for a «prejudice-stereotype» analysis in a s. 15 challenge.  Though the perpetuating of prejudice and stereotype is relegated to mere indicia of disadvantage, they may help determine whether a distinction violates a norm of substantive equality. They are not discrete elements to be proved by the claimant.[77]

[281]      Finally, the strong dissent from Justice Lebel indicates that the «prejudice-stereotype» analysis could still curry favour.

[282]       In sum, given the factual context in the present case, the «prejudice-stereotype» analysis is appropriate. The Court has already ruled that the impugned sections of the CFL do not perpetuate prejudice or stereotyping. Therefore, the claimants’ section 15 challenge must fail.

 

Do the impugned sections of the CFL violate the right to liberty set out at s. 7 of the Canadian Charter and s. 1 of the Quebec Charter (right to freedom) ?

[283]     The evidence (and the arguments) establishing that the impugned sections of the CFL violated the petitioners-defendants s. 7 liberty rights was thin. The Court will dispatch of the s. 7 arguments accordingly.

[284]     Firstly, the Court notes that the liberty interest at s. 7 is not synonymous with the absence of restraint (Re B.C. Motor Vehicle Act, [1985] 2 SCR 486, 1985 CanLII 81 (SCC); R. v. Edwards Books and Art Ltd., [1986] 2 SCR 713, 1986 CanLII 12 (SCC); Léger c. Ville de Montréal, (1985 C.S. 460; (1986 D.L.Q. 391 (C.A.).[78]

[285]     Secondly, the Supreme Court decisions on the right to liberty at s. 7 have been interpreted as protecting the irreducible sphere of personal autonomy wherein individuals may make inherently private choices free from state interference. In Godbout v. Longueuil (City), [1997] 3 SCR 844, 1997 CanLII 335 (SCC),  for instance, Justice La Forest stated that liberty includes the ability to make any fundamental personal decision which «by their very nature …implicate basic choices going to the core of what it means to enjoy individual dignity and independence.[79]»  Seen in this manner, liberty cannot be «so wide as to encompass any and all decisions that individuals might make in conducting their affairs.[80]» 

[286]     Other landmark cases have also equated liberty with fundamental personal choices (R. v. Morgentaler, [1988] 1 SCR 30, 1988 CanLII 90 (SCC); Nova Scotia (Attorney General) v. Walsh, [2002] 4 SCR 325, 2002 SCC 83 (CanLII); B. (R.) v. Children's Aid Society of Metropolitan Toronto, [1995] 1 SCR 315, 1995 CanLII 115 (SCC). [81]

[287]     In contrast to individual choices that are inherently private and personal, choices predicated upon economic grounds do not fall within the ambit of the liberty guarantee enshrined at s. 7 of the Charter (see Siemens v. Manitoba (Attorney General), [2003] 1 SCR 6, paragraphs 45 and 46).[82]

[288]       In the case at bar, the constraints imposed by the CFL impose certain obligations on the manner in which the defendant-petitioners conduct their business. The liberty affected cannot be classified as one that is inherently or fundamentally personal. As a consequence thereof, their liberty arguments are dismissed.

Concluding remarks

—Quest for balance between the protection of the French language and individual rights

[289]     Back in April 2014, Justice Yergeau of the Superior Court of Quebec rendered a decision holding that trade-marks registered solely in English and that are used on public signs and in commercial advertising need not be accompanied by a generic French term in order to comply with the requirements of the Charter of the French language.[83] In the preamble to his judgement, he noted that the issues before the Court  were related to the incessant search for a just equilibrium between the safeguard of the French language as the majority language in Quebec and the freedom of merchants to use other languages :

This case is one part of the eternal quest to balance the safeguard and promotion of French as the language of the majority in Quebec and the freedom to use other languages here, including the language of use of most of the population of Canada and of North America as a whole

It was this need to buttress the ability of French to withstand the continent-wide influence of English that led to the first language laws in Quebec and steered the development of Quebec’s language policy, culminating in the 1977 enactment of Bill 101, the Charter of the French Language, which is at the centre of this case.

[290]     Justice Yergeau's preamble succinctly describes the issues before the Court in the present matter: On the one hand, English-speaking merchants claim that their individual rights (guaranteed by both the Canadian and the Quebec Charters) have been infringed by the impugned provisions of the CFL. On the other hand, the impugned provisions of the CFL are designed to protect a minority language that has to counteract the demographic, cultural and economic dominance of the English language in North America. 

[291]     The French language is too precarious to develop without support from the Quebec government.  Though it is the language spoken by a majority of the residents of Quebec, French is a minority language in North America. Compared to English—the dominant language on the continent (not to say the world), its power of attraction is weak.  In this competition with English, the impugned provisions of the CFL attempt to level the playing field.

[292]      Just as important, the impugned sections of the CFL allow the Québec government to pursue its legitimate objective of protecting and promoting the French language while impairing on individual rights as little as possible. S. 58—in its most recent form—merely conforms to the policy suggestion of the Supreme Court in Ford. As for sections 51 and 52, of the CFL, the Supreme Court in Devine ruled that they were justified under the limiting sections of both the Canadian and Quebec Charters. 

[293]     Given all the circumstances and issues at play, the impugned sections of the law must be seen as a legitimate government effort to find the proper balance between the protection of the French language and the respect for individual Charter rights.

—Failure to meet the evidentiary burden

[294]      In the present matter, the petitioners-defendants have not shown that the situation of the French language has changed significantly since the decisions of the Supreme Court in Ford and Devine. In essence, the positive remarks made by Mr. Veltman on the status of the French language were tempered by the comments of Mr. Termote  To paraphrase from the words of Justice Bellavance in W.F.H. the evidence brought to bear for the petitioners-defendants was not «strong, persuasive, solid and convincing.»  Having failed to meet their evidentiary burden, the Court dismisses the Charter challenges raised by the petitioner-defendants.

[295]     As all the constitutional challenges have failed, all the accused—with the exception of Meldrum the Mover—are found guilty as charged.

 

		__________________________________ SALVATORE MASCIA, J.C.Q.
Me Benoît Belleau
Me Louis-Frédéric Prévost Me Éric Cantin
Attorneys for the Plaintiff
Me Brent Tyler
Attorney for the Accused

 

A N N E X

 

 

 

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500-61-132286-015              ALLAN ANAWATI

 

500-61-135713-023              BENJAMIN TROSSMAN

                                                 JANET SHAHBAZIAN

 

500-61-138006-029              JUNGLE CASSE-TÊTE INTERNATIONAL INC.

 

500-61-138664-025              2527-4390 QUEBEC INC. (INFO-MONT.)

 

500-61-138720-025              2527-4390 QUEBEC INC. (INFO-MONT.)

           

500-61-138736-021              2527-4390 QUEBEC INC. (INFO-MONT.)

 

500-61-144289-023              2527-4390 QUEBEC INC. (INFO-MONT.)

 

500-61-144292-027              2527-4390 QUEBEC INC. (INFO-MONT.)

 

500-61-151683-027              CORDIA FORSYTHE

 

500-61-169233-039              MIKE CALOMIRIS

 

500-61-169496-032              ANALYSE NIRA INC.

 

500-61-175900-035              176410 CANADA INC. (WAKEFIELD)

 

500-61-185176-048              SHERIL-LIN INC.

 

500-61-188529-045              LES DÉMÉNAGEMENTS MELDRUM INC.

 

500-61-191746-040              STANLEY AND MURIEL REID

 

500-61-191936-047              SIMAUDIO LTÉE

 

500-61-224997-073              LES INDUSTRIES GARANTIES LTÉE

 

500-61-229568-077              SCOTT LEMAY

 

500-61-289425-101              3831426 CANADA INC.

 

 

 

__________________________________________________________________

 

In the following files, Mr Brent Tyler ceased represent the defendants:

 

 

500-61-112617-007              9051-1221 QUEBEC INC. (M & M)

                                                

500-61-129307-014              RUI ROYAL INTERNATIONAL CORP.

                                                

 

500-61-152133-022              LES SERVICES DE TRANSPORT DU COCHER INC.

                                                

 

500-61-175851-030              LES ENTREPRISES C.B.L. PIRIE INC.

                                                

 

500-61-185178-044              EMBALLAGES FANCY-PAK LTÉE

___________________________________________________                               

 

 

500-61-136209-021              M.O.T. INTERMODAL SHIPPING INC.

(A guilty plea was entered in month before this judgement was handed down)