2015 QCCQ 354, 2015 QCCQ 354

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 C harter 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 C harter 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. —J udicial 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 theAttorney General to counter the claims of the defendant. Nonetheless, the Court is of the view that fairness and justice dictates that thetestimony 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. Asthe facts—for the most part—are not an issue, the Court will deal with each of the common law defences and determine whether they areapplicable 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 forjudgement. [81] The facts relating to alleged violations committed by Meldrum the Mover required a little more elaboration.

At the end of thischapter—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 helpmerchants in complying with the dictates of the law. He noted, however, that the letters of default sent to the merchants were wantingwith regards to the specific nature of the alleged violations and, more importantly, with regards to the appropriate course of action toremedy 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 shewas left in doubt as to the nature of the violation and the appropriate remedy under the circumstances. The offences are obvious and thecorrective measures are equally obvious.

Regarding a notice for an internet site that has no equivalent in the official language, whatfurther details could a merchant need? Similarly, for an item in a store whose packaging, wrapping or instruction manual is only inEnglish, what more details does a merchant require?

If a commercial sign is in English only, the fault is obvious and the remedy is just asobvious—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 ismarkedly 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 noticesinvited the merchants to communicate with the inspector in the event that they may have any questions.

It should be noted that some ofthe 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 markedlypredominant. With regards to catalogues and packaging, another language may be used as long as French is afforded an equal space.

Themerchants 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 suchslight irregularities was petty and mean-spirited. [88] Does our law recognize a de minimis defence? In R. v. Hinchey, [1996] 3 SCR 1128, (SCC), par. 69, JusticeL'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, assumingthat 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 anaccused has "technically" violated a Code

section has been proposed by the Canadian Bar Association, in Principles of CriminalLiability: Proposals for a New General Part of the Criminal Code of Canada (1992), and others: see Professor Stuart, Canadian CriminalLaw: A Treatise (3rd ed. 1995) at pp. 542-46. I am aware, however, that this principle's potential application as a defence to criminalculpability has not yet been decided by this Court, and would appear to be the subject of some debate in the courts below.

Since aresolution 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 provincialappellate courts) have recognized the de minimis principle. In R. v.

Freidman, 2006 QCCQ 1855 , 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 wasacknowledged 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 theFrench language cannot satisfy the plain meaning and legislative objectives of the law—one of the objectives being a linguisticlandscape that reflects the demographic reality of the province. Instead, the term «markedly predominant» requires that the visual impactof 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 andgenerally requires that the «text in French has a much greater visual impact than the text in the other language.[34]»

Section 2 of theRegulation 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 thephrase «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-onerule conveys the obligation upon the merchant to give the French language a greater visual impact than the other language on acommercial sign. [102] With respect for the contrary view, a plain meaning of the terms «markedly predominant» or «nettement prédominante» in theFrench version of the law requires more than mere priority in the placement of the French text of a bilingual sign. In the Oxford EnglishReference Dictionary, the word «marked» is defined as «clearly noticeable; evident.»

The word «predominant» is defined as «being thestrongest or main element.» Among the

definitions of the word «nettement » in the Petit Robert, one reads: «d’une manière claire, trèsvisible (concret)». The same dictionary defines the word «prédominant(e)» as «qui prédomine». The verb «prédominer», in turn, isdefined 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 Frenchlanguage when compared to the other language included on a sign. The visual impact of the French language has to be clear andunequivocal. 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.

Whenit 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. Suchexceptions 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 beenregistered. 27. An expression taken from a language other than French may appear in a firm name to specify it provided that the expression is usedwith 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 Englishportion of their commercial sign or poster benefitted from the trade-mark exemption to s. 58 of the CFL. With regards to Mundi, thephrase purportedly falling in the trade-mark exemptions read: «Italian fancy leather goods». For Meldurm the Mover, the trademarkexempt 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 SportifSt-Eustache c.

Québec (Procureur Général), at par. 19, «a non-registered trade-mark can fall within the exception found at para. 25(4) ofthe Regulation.» In Magasins Best Buy ltée c. Québec (Procureur général), 2014 QCCS 1427 , Justice Yergeau pointed out thattrade-marks are a matter of federal jurisdiction, governed by rules independent from the CFL and the RRLCB. As the law recognizes bothcommon law trade-marks and registered trade-marks, the want of a registered trade-mark is not an impediment to exemption from s. 58of the law. [107] This being said, the evidence in favour of a trade-mark exemption for Mundi is thin. Ms.

Danielle Besnos, the main shareholderof Mundi, testified during the constitutional phase of the hearing. As was the case with Mr Filgiano, her testimony was directed to theequality 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 inwhich the application of the CFL law affected her dignity as a member of the English-speaking minority, but regarding the trade-mark ofthe 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 benefitfrom an «exception, exemption, excuse or justification provided for by law.» Instead, that burden falls to the defendant. As nothing in theevidence establishes that the phrase «Italian Fancy Leather Goods» was used by the defendant to promote a product or a service in adistinctive manner, no trade-mark exemption was established. For that matter, the phrase is nothing more than a generic description ofthe 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 resultwould 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 «everythinginside packed with pride» since 1930. The phrase rings like a slogan; it even rhymes.

Having heard the evidence, the Court is satisfiedthat 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 notlend themselves to a conviction. One will recall Mr. Filgiano’s testimony to the effect that the truck bearing the afore-mentioned sloganhad 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 advertisethe 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 giventhe 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 thatit is was/is a province whose inhabitants are predominantly French-speaking.

The linguistic landscape of the province cannot be affectedby 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 werenot intended for the public view. If the Court has also erred in this

interpretation of s. 58, the circumstances of the case lend themselvesto 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 inEnglish; internet websites that were only in English without a French equivalent. On the merits, all these defendants are guilty ascharged. 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 theCFL 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, (QC CS), held that commercial internet publications came within the scope of s. 52 of the CFL. Inessence, his decision was predicated on the fact that the said

section does not limit the transmission of a commercial message to aspecific 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 thecontext of the statute an essential element of the offence. It may well however determinate as to whether or not the publication iscommercial in nature.

Had the legislator elected, whether in the statute or in the regulation to specify or spell out the potential vehicles oftransmission 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 sakeof convenience, the public that it becomes vested with the characteristics if a commercial publication as contemplated by

Section 52 ofthe statute. It may respectful view that is the only reasonable way to interpret the words of the

section and to ascribe to them their plainmeaning. (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, atparagraphs 29 and 30 of his judgement held that the medium in which the publication was disseminated mattered little in what concernsthe 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 enrevanche 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’impressionde 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 inso far as it applied to internet publications. The reading of Justice Fraser Martin’s decision, however, also suggested that jurisdictionalissues 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 Quebecgovernment.

[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 statutedid 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 internetas the medium by which the offending commercial announcement was made the Attorney-general can be seen in any sense as attemptingto 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 ofthe population of Montreal to see would counsel for (the petitioner) have been heard to argue that the Attorney-general was attempting toregulate 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 andenforcement 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 themessage 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 Frenchequivalent, Mr Tyler has raised the jurisdictional issue once again.

The presentation of his case may have been different than hisprevious 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 Quebecgovernment’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 shouldfall under the broad powers of the Federal government to regulate telecommunications and broadcasting.

Indeed, the courts haveconfirmed 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, (UK JCPC), [1932] A.C. 304—a decision in which the Privy Councilconfirmed the majority decision of the Supreme Court). Also, in Capital Cities Communications v.

CRTC (1977), (SCC), [1978] 2 S.C.R. 141, the Supreme Court of Canada determined that cable-television delivery—involving the relaying anddelivering 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 civilrights 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 advancedon behalf of the petitioners, the impugned legislation has no designs on the internet (which arguably could fall within the federaljurisdiction); 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 allegedviolation of Charter rights (a matter we will discuss in a later chapter); the other ground was jurisdictional in nature—the petitionerargued that the impugned provisions of the CFL constituted Criminal law under the Constitution Act 1867, because it involves aprohibition accompanied by a stiff fine. The Supreme Court dismissed the jurisdictional arguments by noting that the veritable nature ofthe 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 theCharter of the French Language entitled "The Language of Commerce and Business" is to regulate an aspect of the manner in whichcommerce and business in the province may be carried on and as such they are in relation to such commerce and business. That theoverall object of the Charter of the French Language is the enhancement of the status of the French language in Quebec does not makethe challenged provisions any less an intended regulation of an aspect of commerce within the province.

As such, they fall withinprovincial 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 doubtsimply because the infractions were committed through unilingual English postings on the internet. In Devine, the Court held that theQuebec legislature could regulate language when

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