You are on page 1of 32

BARNES, SAMMONLLP

COVERING LETTER

Date:

August 20, 2010

is under error,

8000.

This message s ntended r which it is addressed and may privileged, confidential and exempt disclosure applicable law. If you have received this communication in please notify us immediately by telephone at (613) 594 Thank you.

PLEASE DELIVER THE FOLLOWING PAGES TO:

TO:

FROM:

Number of Document:

Message:

Howard Galganov Kenneth Bickley Pages: 32

Copy of judgement

E-mail address:howard@galganov.com

CITY: Ottawa, Canada

Received this today. do not know if it can be e-mailed because it is so long.

ORIGINAL TO

Yes

1

JUDGES' CHAMBERS

Fax 6132391507

Aug LU LUlU 11.]Ham ~UUZ/UJL

CITATION: Galganov v. Russell (Township), 2010 ONSC 4566 COURT FILE NO.: 08-CV -41980 DATE: 2010/08/20

ONTARIO SUPERIOR COURT OF JUST1CE

) )

j Kenneth Bickley, for the Applicant )

)

)

The Corporation of the Township of Russell )

)

)

Respondent )

BETWEEN:

Howard Galganov

Applicant

-and-

Jean-Serge Brisson

Applicant

-and-

The Corporation of the T ownship of Russell Respondent

-and-

L'association franvaise des municipalites de POntano

Intervenors

Ronald F. Caza/Mark C. PowerfMarc Sauve, for the Respondent

COURT FILE NO.: 09~CV-44738

)

) Kenneth Bickley, for the Applicant

)

)

)

) ) ). )

)

)

)

) ) )

)

)

) )

Ronald F. Caza/Mark C Power/Marc Sauve, for the Respondent

Marc R. Labrosse, for the Intervenor

HEARD: May 12, 13, 14 and June 15, 2010

REASONS FOR JlJDGMENT

METIVIERJ.

Introduction

JUDGES' CHAMBERS

Fax 6132391507

[1] On June 16.2008. the Township of Russell passed a By-law which required that all new exterior commercial signs be in English and French. (The parties-have also used Municipality to refer to the Township.)

[2] Mr. Galganov launched his challenge to the By-law on July 2, 2008.

[3]· Mr. Galganov is not a resident in the Township but, during the months leading to the passing of the By-law, he arranged to rent space in a local barbershop window in Russell and leaned a hand-written sign against the window which read:

Page: 2

GALGANOV CONSUL TINS BY APPOINTMENT - ONLY CONTACT:

HOWARD@GALGANOV.COM

A MEMBER OF THE RUSSELL CHAMBER OF COMMERCE

[4] Mr. Brisson resides in the Township in question and has operated a business there for some 34 years. After the passage of the By-law in question, he changed the sign in front of his establishment from the English one he had had for many years to one that, except for the name of his business, was solely in French,

iNDEPENDENT RADIATOR SERVICES

Radiateurs repares at neufs

Air climatise rempliet repare Reparation rnecanlque mineure

L Jean-Serge Brisson 613-443-5423

[5] Mr. Brisson then brought this action in 2009.

[6] Both applicants are represented by the same counsel.

[7] By order of Mr, Justice Ray, these actions were ordered to be tried together with evidence

from one used in the other. Although two judgments were ordered, it is more suitable to issue one judgment only.

JUDGES' CHAMBERS

Fax 6132391507

Aug 20 2010 11;39am PUU4/U:l2

Page: 3

[8] The hearing of this application took place in English except for the submissions of the Intervenor and elsewhere where necessary when. any party quoted from French affidavits. Most of the respondent'sevidence, byway of affidavits, was in French. This judgment will adopt the same use of language.

[9] The applicants attack the By-law on several grounds:

(1) It is ultra vires of the municipality's legal powers;

(2) It is an infringement of the Canadian Charter of Rights and Freedom S5. 2(b) and

15; and ..

(3) It is a violation of international law (88. 19 and 27 - International Covenant on Civil and Political Rights).

[10] These claims are rejected by the defendant Corporation.

[11] The Intervenor, I' Association francaise des municipalites de I'Ontario, (« 1'AFMO ») adopts the arguments of the respondent on Charter issues. It joins the Township in its position on the sole issue of whether or not the By-law is ultra vires. This intervention applies only to the Brisson application.

B~ckground and ffistory of the BI-law

[12] The Township of Russell, on the eastern outskirts of Ottawa, has a population of approximately 13,883. The village of Russell accounts for approximately 3,530 while Embrun has approximately 5,655 people. The remaining population is in Limoges and Marionville. It is accepted that bilingualism is a linguistic reality in the Township.

[13] In 1977, the Corporation of the Township of Russell had passed a By-law regulating signs and their usage, as permitted by the Municipal Act.

[14] In 1989, it had passed Resolution #551-1989 which declared the Township bilingual and undertook to offer services in both official languages. That resolution is on the following page.

JUDGES' CHAMBERS

Fax 6132391507

Aug 2U 2U1U 11:3Sam PUU~/U32

Page: 4

30

CORPORATION OF THE TOWNSHIP OF ~USSeu.. Document 30' CQRPORATIOM DO CANTON DE ~U$SELL

Spt;!Clal ~ .ofthe Munidpaf.Couneil- November 13, 1989 ~nion extn!lOrcfmaire du oonseiI municipal- lEt 13 novembre 1989

Moved byJPrc:tpDS4i par: Claude GrEigctra Seconded by/Appuyi par: Denis aourdaau

\lVtlerea$ French am:f Engttsb are ~ two official I:angul1IgM in canada;

~ 1ft 1. ihe()ntallo.MUJ'lJeipei .

A$$Odatfon adoPted. a resorution r&questmg the provincIat~lQ declare officiaIty

bilingual the ~ of OntaOO; .

~ a ~ of the .Rl.IsMfltOwnship population ;, Fret'ICh-$paking;

Be it thE\,efore moved that .

8) 11'1$ Ru~ toWn$ip be declared bilingua~

b) The $Mlic_ offered by the RLl$SeJllOWn$hip

. bill available in both offlclat IMguages of this

country; .

c) ~oo, bV4aws;. agreements. tapQrts,. br1efIr tilItJ ttod ~ of'lidill statement be in bOth' d'ffdeIlanguages of this CotiniJy •.

CARRIED·

I. GinettB Bertnmd.' Ckd _m theC~ of th~ T~ o"R~ do bareby ceJtity that tha~~ a mae COpy. of resdutkm 561-1989,.which waS adopted by the Council (If the Corpomb of tl'Ie T01I'vflSbip of RU$$9H on the

131ft day of November. 1989. . ,

Odattoodu que lef~ etrangJabJ ~ leG deI.cI; klngues offtcielles du pays;

Attendu qua rAMO a, en 1985, tal s.ien·ne Uf\$ proposition invilant Ie goWetner.nl3nl de notre pmvinca a declarer "Ontario UQ8 province

, Officielfement biJingue:

AttefJdu quela pOf»JIation du canton de·RlISsaB ElSt majoritairemi:mt~; .

1Ie$l~que:

aj La municipaf~du canton de Rl!$$E!1t Set

d8eIam bilingue; , ,

b) Les ~ tendus Par Ja municjpalite du canton d1rtRusselfsoient disponible$ daM 1M deux langues offlcie'" tW ,pays; ,

. c) La ~~,. 1M rQglements, feu artete:a nwntcipaux,. les rontsats. • r~ppo (($, brat, tout texte ou cOmrm.miqui de ta m~JJId~du'CantOn de R~IJ. ~ ~ dans lee deux·~ offldelles du pays,

APf>R(J~

Je, GineUe Bmttaftd. $1ICretaire m\!nrolpal$ de I .. ~atton de canton de R~. cmifle que fa ~nl$ est one lXlpie r;(IJfforme de fa rMolulion ,551w1989 qui a et6 adoptee par fe COfI$eil de Ia_ municipati de Russell Ie 13 oovem~ 1_.

717, ~ NQi"..t:hIroe Stret:l, Emimm ON KOA lWl ~~ca

JUDGES' CHAMBERS

Fax 6132391501

Aug 20 2010 11;39am P006/032

Page: 5

[1.5] In 2008, the Sign By-law of 1977 was amended to provide for bilingual signs.

CORPORATION OF THE TOWNSHIP OF RUSSELL

By-law No. 49-2008 BEING A BY-LAW TO AMEND BY-lAW NO. 29- 1977.

Wh$re3S Council of the Corporation of the Township of RussaK did enact By-law No. 29-1971 to regulate and prohibit sig.n$ and other advertisIng dEMce$;

CORPORATION DU CANl'oN DE ~USSELL

Reglament 00. 49-2008 REGlEMENT QUI MOD1FIE l.E REGLEMENT NO. 29-1977.

ATTENDU que Ie r8g1~ment 00.29--1977 adopte par Ie coosall de Ia CorporatiOn du canton de Rl.I$S$Il r$glementa OU interdit rusage des enselgnes et auttes sffidles publicitaires ;

AND WHEREAS the Council af ths Corporation of . ET A TTENDU qUe Ie consell de ta corporation du ttle Township of Rl.I$eell now deems it advlaable to canton de Russell considere qu'ilsst opportun de amt.md By-law No; 29-1977; modifier Ie rliglement no: 29-1911 par C8 qui suit:

NOWIHEREFOREBEITRESOLVEDTHATTHE: OU'll SOIT RESOLU QUE LE CONSEI!. DE LA COUNCIL Of' THE CORPORATION 01= Ttte CORPORATION OU CANTON DE RUSSELL

TOVVNSHP OF RUSSEll eNACT AS FOLLOWS: OONNE FORCE DE LOI A CE OUt SUIT ;

1.

Ttlat Section 4(2) of i3y-bw No. 29--1977 is 1. hereby ~ by the addiHon of the following subsection:

Que I'artlcle 4(2) du r8g1ement 00. 29-1977 soil; modifiB par adjoncllon du paragraphe sulvant:

s.otron 2.1 - Messeg(l or content of any new exb;lrior commercial signs

AATIClE 2.1 - La designation ou Ie conter\U des nouvelle" em;eIgnes cOO1merciale:s exl:erieures

Tho message or content of any new

exteriOr" commercial signs shaft be bilingual. The lettering of an eXterior eornmereI8l sign (~on an~ style} must be identical In ' French and in English. However. ttle name, Qf a bvsiness Can be unlltngual for an exterior commercial sign.

La desigilatlon ou Ie contenu des nOl.Mt11es enselgoe$ oommerciSles extertGUres deW\'! ~biingue. Le 'Iel:irage d'une enaeignf,l oommerciale extMeure (~ille et $tyIe:) devra 131re Ie ~e en anglailJ at en franyais. Toutefois. la raison societe PQtU'I'a ~tre unillngue pour une enseigne oommen:::lale 8Xtert91,.11'8.

Read a first and second time this 411\ day of Juna WOO •.

Read a third time and passed this 16'" day of June 2008.

lu en premiere et deuxieme lecture ce 4""" jour de jI.Iin~e,

tu en tmisieme lecture et adopte ee 1~ jour d$ juin2008.

JUDGES' CHAMBERS

Fax 6132391507

Aug 20 2010 11:39am P007/032

Page: 6

[16] Since the applicants allege the 2008 By-law is ultra vires, it helpful to examine how the By-law came to be.

[17] On December 18, 2007, at a regular Russell Township 'Council meeting, a resident; Mr, Jean-Guy Patenaude, made a presentation requ~1:in.g council. to adopt a bilingual signage by-law for the region. The following the document he submitted.

v'" 35

~~fp:j;lr/1 -~ ~~,

I?.f'v~;o'? pnt}PiU, M~

. Ie II' :T~:n6T?' .;2~

Madame et Messicumles ~ll~es and 0en1l~

Le bnt de ma ~ et celle des gens qui m'appui.tmt t$ ~ ~ au«llJ!eil de la m~deR.n$:i:en d·~DJ;IrCglement5l.lJt"~ bjJinp~.

Our p1l1'pDlGe tod«;p 1$ to £181' !Mtow'n$hip 17/ Russell to adept d PQIkJ' ollln1&tgrml oardoor postintJ., Sut:h a ]Wlfq wlll &UJ1fJOTt 1M right ofboth lingr«slif:..(;'f>Wf'IW'Iitil:$ to

IWe in the ItmgttaJJlt;Qtheir cboic«: .

N~ mmlieipal)~ se~.dcox SIO'opes ~q!leS qui lSOlltetabHs ~ 110m:

JIlUJ).jcipelite depw!1 ~ de dt::wt si~ et qui s'c~~ de ptomouVOlr leur ~et Ieun; vaklw ~Cfdc: 'ri .... Te dMSl'baimonie et le ~

Notre mllJ:ljeipalit6 Ii'cst decl~ bilinguc ct offte ses ~iCC5 dam; les deux ~ offid.c:lle$ d\J C~ Nous a'l>YOOS 'la'un regUi:ment $Illl'~ l;»1ingue. re:nrar~ Ie bilinguismee:l: serallD attMpow;' le &!:veioppo:ment de noll deux comm~

A hili7l~ pi)jptfng policy wtll be (Itt a!J$Slp the JtcQnt)t;Rc,. socia1 and culhlTal dl!:w!lopm.l§Tll of ()tD t-mp_ '

En efret.le ~;ynllD)im:IC des d.crux it~ I~ nous ~ d'atti;mr de ~117t citoyeJ:ll5. lilt de ».clIVd~ ~.d·lWcMer l!1JX meiUe:un empkria. Un afficlmgl: bil.mgutll .. ~ i Wre. tiuc:f:ific:r 1C$~ut!l que nous ~ pour assurer IlOUe avenir.

La rmc;enee de Is p;rovim:c: de l'~ .a. SIC d&111n'r ~ lajsse aux.lll1lllicipalites Ie f~ de])OSCX' des gc5tc$ ~ pour 8OU:bmir 1~ c#oyens des gtVl.I,pCli ~ d exereer un ~p l'II):fimlur dn biHn~

lA ~ est im ];lIIljs bi"e. et 1:t)D1 geste po:;e pitt ootre mun1eil'l8litC en f"aveur du biUnguis:lne I§t UJl ~ en favem du ~

S¢}CIlles~ • ~ de ZOO6,. n % del1 Canadiens appuie:m Ie ~p$D:I"'. Ce DC sont pa$qt>¢ les ~.f~ qm' appuialt Ie bilinguimm: : te $V$U.l de soutielt ~ 1<1 ])I)p.ioA anglophone. ~ 65 %. Et ce n'cst PM ~ plus me affaiNdcciwvClm gri$ ~ 80% desjel.mcs de 131 ~ ~ ~Ic bt~:

ACtXJrdlJtg to tIN! ::1006 cermt.S ~ n 1M> t)f itIJ. Canadifll1S ar« tnfaw;e' &/hIliRguaJism. inctudlng65" Q{CmtfJda: 'S English spiZfiliJtg citizen!;. AM IMII ~ i81fD1limiled to cl..;h r gtmet'fltirms - 80% &/ the 18 IQ 34 years old group ~ blimgualimt.

9ref, un r~ sur l~dH~ W~ fllvorisemlll' ~UiBme etl'!w:mm:Iic.dam n(JU'l!; m~i1e. ~ etOy~ avl.))r te mutiou dc nos deu:l!; ~~ lingor.:m~ er noes vous invitoma ~UJl regl~5W l'~~ ~gueQt.mctlf mt:! ~

m:ttIlKipzI3it4 ~ UJl v~le rc:fkt de nos; deulC commum~ Jm~~ .,

[18] Council decided to explore this On Janllary 21, 2008, the council meeting was moved tel a larger venue to accommodate the 300 people who' attended. Many questions

JUDGES' CHAMBERS Page: 7

Fax 61323!:l1tJOI

were asked and answered. The initial resolution was amended and at the end of the meeting it read as follows:

Whereas Council for the Township of Russell has received a request by some residents to amend the existing sign by-law to include a linguistic component for English & French;

And Whereas the T ownship of Russell is a community that already exists with both English and French speaking residents;

And Whereas Council has received a request from both the Russell Chamber of Commerce and the Embrun Chamber of Commerce to form a sub-committee to review a change to the existing sign by-law;

Be it resolved that council form a sub-committee to consist of two representatives of each Cham~r of Commerce, the Mayor and the CAO;

Be it further resolved that this sub-committee report back to council on all aspects of a change to the existing sign by-law to include English and French linguistic component if required and that this review include but not limited to legal review, financial implications and schedule for proceeding and that the terms of reference. schedule and final tow members be ready for council meeting on March 17, 2008;

Be it resolved that the sub-committee review and recommend on the following proposed amendments to the sign by-law:

"The message or the content of any new commercial sign shall be bilingual. The lettering of a commercial sign (dimension and style) mll::''! be identical in English and French. However, the name of a business can be unilingual for a commercial

3&L

[19] On February 19, 2008 - A list of unanswered questions remaining from the January meetings were addressed and answers were provided in the agenda for that meeting.

[20] On May S,2008, at the regular council meeting, it was decided that the sub-committee would:

I. review the similar. by-laws already enacted by the Cite of Clarence-Rockland, La Nation Municipality and others;

2. ensure that.the township can. legally legislate on a bilingual by-law aimed at

businesses in the township; .

3. prepare their report for the Council meeting May 20,2008 and a public consultation would be held on June 4, 2008;

[21] On May 12, 2008, the sub-committee of eight people met and discussed the proposed by-law. Five were opposed to it; three were in agreement with it.

JUDGES' CHAMBERS

Fax 6132391507

Aug 2U 2U1U 11;J~am PUU8/UJL

Page: 8

[22] On May 20, 2008, the Report was presented to council, along with notes on the opinions of the sub-committee members.

[23] On June 4, 2008; a public consultation was held. Questions, comments and opinions were received from 37 people. A petition was received in support of the proposed By-law,

_ [24] On Monday, June 16,2008, at the regular council meeting, 11 citizens asked questions about the proposed by-law, A third reading took place and the by-law was passed.

[25] The parties exchanged numerous affidavits and there were cross-examinations on these, I have carefully reviewed all affidavits and set out below salient points from many of these.

Evidence from the Applicants

Mr. Howard Galganov

[26] Howard Galganov is a well-known activist in the field of language rights. He became very involved in the issue while residing in the province of Quebec. He has now moved to the province of Ontario. He does not live in the Township subject to the By-law and he owns no property there.

[27] IDs contention is that he operates a businessin the town of Russell. He relies on the fact that he has placed a hand-written sign in the window of a barber shop. He pays rent of

$1 per month- .

[28] On cross-examination on his affidavit, his evidence was that he is not paid for any advice he might give in his alleged "business" on matters relating to language rights or this litigation.

[29] Mr. Galganov has not been charged with a breach of the bylaw he seeks to have declared

unconstitutional. .

Mr. Jean-Serge Brisson

[30] Mr. Brisson is a resident in the community. He continues to operate Independent Radiator Services. the same business which he has had for over 34 years. During most of that time, he has had a commercial sign only in English.

. [31] After the By-law was passed; he changed his sign so that it is now entirely in French.

[32] Mr. Brisson's business cards show the name of the business in English; his invoices are in English. IDs sign continues, as it did before, to have the English name of the business.

[33] He issued his application in this matter on April 17, 2009, after cross-examinations-on all affidavits in Mr. Galganov's application had been completed.

[34] Mr .' Brisson is known as a political activist and objects strenuously to various laws with . which he disagrees. He is refusing to collect sales tax as part of his business, and admits that he has filed no income tax returns since 1991. He has contested the mandatory seat belt legislation.

JUDGES' CHAMBERS

Fax 6132391507

Aug 20 2010 11;39am P010/032

Page: 9

He was sentenced to 105 days in jail for refusing to buckle up and for driving without a license which had been revoked for non-payment of fines.

[35] Counsel for the applicants sought to enter an affidavit sworn by Mr. Galganov in support of Mr. Brisson's claim. Mr. Galganov and his counsel were of the view that Mr. Galganov could be qualified as an expert in "the politics of sociolinguistic relations between Francophone and Anglophone group dynamics." He deposed that he had been very involvedin the issue in Quebec at significant personal cost to him and set out details of his numerous activities over the years.

[36] His stated expertise comes solely from his personal experiences, largely those fighting for freedom of expression and against the Quebec government imposition of language laws. Educationally. he did not complete an undergraduate degree .

. .

[37] Given his political activism on language issues, he would scarcely be an objective or

independent expert. As importantly, since he is the applicant in a companion action, he would be in a conflict of interest and would in effect be engaging in "oath helping" for his own purpose . .I declined to allow his affidavit in support of Mr. Brisson or to qualify him as an expert.

[38] Mr. Brisson has not been able to obtain a permit for his new sign since it does not comply with the By-law.

Dl". Conrad Winn

[39] Counsel for the applicants tendered the evidence of their "expert", Dr. Conrad Winn, a professor of political science at Carleton University who also operates a specialized public opinion research finn. This gentleman obtained a PhD with a thesis on electoral conflict in Canada. He describes this as centered on "the bilingual bicultural divide 'in politics ... driven primarily by French-speaking minorities outside Quebec as a result of their experience of threat".

[40] He is the President of COMPAS Inc., a public opinion and customer attitude research finn. Although he deposes that he was engaged by Mr. Brisson, in fact; Dr. Winn was retained by Mr. Galganov to do what he described as a "very tiny" poll.

[41 J In his affidavit, he says "The central issue is to forecast the impact of the town of Russell's requirement for bilingual commercial signage - whether it will help the French language flourish, have negligible impact on the vibrancy or viability of the French language, or undermine its vibrancy or vitality."

[42] In cross-examination on his affidavit, and based on the said poll which Dr. Winn referred to elsewhere as "very exploratory research", he concluded that Russell's By-law is not necessary and will not be effective in helping the French language to flourish. He stated that such a By-law could be counterproductive by eliminating the possibility of having unilingual French language signs. By causing alienation among English speakers, bilingual signage could reduce prospects for federal-provincial support for investments, such as the creation of very high quality French language post-secondary institutions.

[43] The pollwhich he conducted among a sample group of 70 Franco-Ontarians in Northern Ontario, probably in Timmins, although he was not certain of the location, "showed

JUDGES' CHAMBERS

Fax 6132391507

Aug LU LUlU 11:J~am PUll/UJL

Page: 10

that six out of seven respondents believe that residents of Ontario should be entitled to unilingual French signs on their own property if they wish to". ' .

[44] In cross-examination on his affidavit, Dr. Winn stated that the poll "does not confirm by itself that bilingual signs areundesirable or bad".

[45] Dr. WiM criticizes the evidence of the defendants on the basis that it is informal and testimonial only since no empirical'research exists. He concludes that the By-law "may undermine the French language by discouraging economic activity in the affected business area; sow conflict, orunderminethe self-confidence or self-esteem of French speakers" and that "governments ought to be careful not to impose regulations that may be perceived as more

vexing than fruitful, or, more generally, bring government into disrepute." .

[46] I found Dr. Winn's evidence to be of little assistance in this matter and declined to designate him an "expert".

Evidence from the Defendant Township

[47] There were affidavits from several people whom I consider to be experts.

Dr. Charles Castonguay

[48] Dr. Charles Castonguay is a mathematics professor, now retired from the University of Ottawa, where he had worked from 1973-2005. He has published extensively on linguistic assimilation. In his evidence, he reviewed statistics provided by Statistics Canada. Some of these applied to Eastern Ontario as a whole ~ others to the Township.

[49] He noted that approximately 50 per' cent of workers in the township areas work in Ottawa.

[50] He reviewed the growing Anglicisation of the population in Eastern Ontario whose mother tongue was French from 1971-2006. That population increased from 158,755 to 200,899 in the time period. However, the population whose mother tongue was English, or other, increased. even more with the net result that the Francophone population decreased in, weight from 27.2 per cent of the entire population in 1971 to 20.5 per cent in 2006, even though the actual numbers increased.

[51] Or. Castonguay states that it is well-accepted in sociolinguistics that the lower the percentage of a linguistic population. the greater is the pressure on those people to speak the language of the majority.

[52] Statistics also show that a.larger percentage of people in Eastern Ontario of ages 25-44 have become anglicized. Children horn to this group will usually then not have French as their mother tongue. Add to this the factor ofa low birth rate, says Dr. Castonguay. and the linguistic assimilation is very significant.

[53] Further, the statistics based on use of the French language at home in Eastern Ontario show a decline from 23.8 per cent in 1971 to 15.6 per cent in 2006.

JUDGES' CHAMBERS

Fax 6132391 ~O I

Aug 2U ZUlU 11:4Uam PU1Z/Uj2

Page: 11

[54] At the same time, the Anglophone population in. Eastern Ontario increased by 59.1 per cent and the Francophone population by 26.5 per cent in the period from 1971 to 2006 ..

[55]· The statistics for the Township of Russell are even mote indicative of linguistic assimilation than for the whole of Eastern Ontario and this is more evident in the two counties geographically closest to Ottawa (Russell and Clarence).

[56] Statistics relating to the use of English at home in the Township of Russell show an

increase from 15.9 per cent of the total population in 1971 to 40.7 per cent in 2006.

[57] The total population of Russell Townsbip has increased by 11.9 per cent from 2001-2006. But the Anglophone population (those having English as mother tongue) increased by 13.7 per cent, while the Francophone population's increase was 10 per cent only.

[58] Since there is a net Anglicisation rate of 20.6 per cent for the young adults (ages 25-44) of Township of Russell, their. children will not have French as their. mother tongue. This will mean that the Francophone population will continue to become more subject to assimilation.

[59] In a supplementary affidavit, Dr. Castonguay refers to Dr. Winn's conclusions after his polling in Northern Ontario. He comments that no specifics are known about the Winn poll, how it was conducted, etc. He opines that no conclusion arising therefrom can be applied to the

. Township of Russell.

[60] He also responds to Dr. Winn's view that nothing has been written on the effect of signage on the preservation of minority language rights- Dr. Castonguay says that, all the contrary, Professors Landry and Churchill have researched and written on this subject of signage outside Quebec for approximately 20 years.

[61] Dr. Castonguay explains in his supplementary affidavit:

Dans le cadre de reflexion, qui adresse la vitalite des langues, [e Professeur Landry indique que la presence ou F absence du francais dans l' affichage visible dans un paysage lingnistique constitue un des indicateurs de 1a vitalite de la langue francaisedans le milieu minoritaire (voir [ .. ,] texte de Landry, Deveau et Allard [Langue publigue et langue privee en milieu ethnolinguistigue minoritair.e]. La question de I' assimilation linguistique, qui revet les deux aspects mentionnes Oa persistence linguistique des francophones et le pouvoir d'attraction du francais), constitue aussi d'apres le Professeur Landry et son collegue, le Professeur Real Allard, des indicateurs de la vitalite de la langue franeaise en situation minoritaire. En fait, iI existe tout un faisceau d'indicateurs de vitalite qui ne sont pas necessairement independents l'une de r autre et qui contribuent taus a nous permettre d'apprecier la vitalite d'une langue et en particulier le degre d'usage de cette langue.

Lorsqu'on voit le francais sur une affiche publique, le message qui est donne est que cette langue est utile, que I'affiche nons invite a en faire usage, qu'on peut se servir du francais. Si le francais est absent du paysage linguistique, le message communique par son absence est que la langue est inutile et ne devrait pas etre

JUDGES' CHAMBERS

Fax 6132391501

Aug 20 2010 11:4Uam PU1J/UJL

Page: 12

conservee. L'absence de visibilite de la langue francaise suggere qu'i1 n'est pas important de continuer a parler en francais en prive pour ceux dont la langue maternelle est le francais, ou qu'il ne vaut pas la peine pour les nouveaux arrivants allophones d' envisage adopter le francais eomme nouvelle langue d'usage a la maison,

La presence ou l'absence de la langue francaise dans le paysage linguistique, surtout dans l'affichage, est directement lie, done, a la conservation ou a I'abandon de cette langue a la maison par les personnes qui la parlentcomme languematernelle, ainsi qu'a I' adoption ou non de cette langue par les allophones.

L' analyse de Monsieur Winn est par consequent incomplete.' II n' est pas possible de simplement repousser l'impact qu'a la presence ou l'absence de l'affichage en public sur l'evaluation de l'intc5ret de cette langue en taut que langue vivante et viable. Cet impact confirme que I'affichage public joue un role essentiel dans la conservation de la langue de la minorite comme langue d'usage au foyer par ses locuteurs natifs, ainsi que comme nouvelle langue d'usage d'adoption panni les personnes qui ont une autre langue maternelle,

[62] During cross-examination on his. affidavit, Dr. Castonguay explained that the basic fact he wished to establish with respect to the population having French as their mother tongue was that during the late 198o.'s. and early 1990.' s that population diminished as a percentage of the total population and was no longer the majority.

[63] As compared to the number of people (6)250.) declaring themselves as having French as a mother tongue in 20.0.6 in the Township of Russell, only 5,398 reported they used French at home.

[64] Dr. Castonguay's .expertise in dealing with the statistics is accepted and his conclusions are persuasive.

Mr. Robert Choquette

[65] Robert Choquette is a retired Ottawa University Professor, who was head of research « en

civilisation canadienne- francaise ».

[66] He has written 11 books on the history of religions in Canada and on the history of Franco-Ontarians, To prepare for his affidavit, he deposed that he consulted a number of texts including:

(a) Francine Bourgie et Jean-Pierre Proulx, Histoire d'Embrun (Embrun), Municipalite de Russell, 1981,253 pages;

(b) Lucien Brault, Histoire des Comtes Urus de Prescott et de Russell. V Orignal, Conseil des Comtes Unis, 1965,377 pages;

(c) Robert Choquette, L'Eglise catholique dans l'Ontario fran~ais du dix-neuvieme siecle, Ottawa, Editions de I'Universite d'Ottawa, 1984,365 pages;

JWDGES' CHAMBERS

Fax 6132391507

Aug 20 2010 11;4Uam PU14/U~L

Page: 13

(d) Robert Choquette, L' Ontario franyais historique, Montreal, Etudes Vivantes, 1980, 272 pages;

(e) Robert Choquette, La foi gardielll1e de la langue en Ontario 1900~1950. Montreal,

Editions Bellarmin (Fides), 1987,282 pages; . .

(f) Wendell M. Stanley, From Swamp and Shanty - The History of Russell Village and

the Western Part of Russell Townsbin, 1821-1987, 173pages.

[67] He deposes that the aim of the By-law in question is to reinforce the French presence in public places in Russell Township. The aim .of his affidavit, he testified in cross-examination, was to show the evolution in the history of Francophones in the township.

[68] He quoted statistics to show that the region became largely Francophone by 1961- when the percentage of Francophones reached 80.4 per cent, up from 42.3 per cent 100 years earlier in 1861.

[69] He pointed out that after 1960, with the advent of television, easy and accessible transportation and growing urbanisation, the Francophone.population was no longer isolated and families could no longer easily preserve and protect their language and their culture as Dr. Choquette pointed out;« Tous baignaient de plus en plus dans une mer anglicisante ,).

[70] He states that Franco-Ontarians then sought to protect their language by way of French-only schools and school boards, a French educational television network and services of the French speaking Montfort Hospital.

[71] Dr. Choquette's affidavit further stated that these steps had nothing to do with rejecting English, but rather it aimed to preserve the two languages. Since English was the dominant language in every sphere, it was necessary to create protected zones for the French language.

[72] It was from this need that various municipal by-laws were passed requiring signs in both English and French. Russell was the fourth municipality to do so; after Casselman, Clarence-Rockland and La Nation,

[73] TIlls development says Mr. Choquette is simply another step towards ensuring «une ambiance soeiale et culturelle qui reconnait l' egalite des langues francaise et anglaise dans une municipalite qui est en realite paritaire Anglophone-francophone ».

[74] I accept-his evidence as to the history of Francophones and the French language in the reglon.

DT. Raymond Breton

[75] Dr, Raymond Breton is a sociologist with a PhD from John Hopkins University who supplied an affidavit and was cross-examined OD it. He describes his field of study as the relationship between cultural groups with a particular focus on ethnic and linguistic minorities in Canada.

JUDGES' CHAMBERS

Fa~ 6132391507

Aug ZU LUlU 11:aUam ~UI~/UjL

Page: 14

[76] He has an expertise, acquired over 50 years of study in the areas, in identifying factors which contribute to. the survival and development of linguistic and cultural minorities or which lead to' the decline of these minorities by way of progressive assimilation.

[77] He asserts that Franco-Ontarians are continually exposed to assimilative forces. The

. preservation of their language rests largely on the frequency with which they use that language in daily life.

[78] Minorities are linguistically vulnerable because they must use the language. of the majority in many instances. For example, most Francophones in the area under discussion use English at work and this in itself exerts a strong assimilative force.

[79] The bilingual signs, says Dr: Breton, assist Francophones by providing a public and visible recognition of society" s acceptance of them: and of their language. This encourages them to maintain their language.

[80] On the contrary, if an individual perceives his community as having little value or worth, he will have a tendency to avoid identification with it, and will be unmotivated to. use this language, and thus assimilation begins, according to. Dr. Breton.

[81] . He asserts that the requirements of the By-law as to. the similar size and style of lettering is an affirmation of the equality of the two. languages and cultures. He refers to. it as a symbolic recognition in the same way as flags, monuments and ceremonies recognize the value of a culture and inspire pride in members of that community.

[82] Dr. Breton claims that an institutional or governmental recognition of linguistic diversity is based on the desire for social cohesion and the sense of belonging for all groups,

[83] His hypothesis is that the bilingual signs will contribute. in meaningful ways to valuing the French language and thereby will encourage the Francophone minority to maintain its language and thus help prevent assimilation.

[84] He acknowledged that numerous factors contribute to. the pressure for assimilation,

including lower birth rates, etc.

[85] He analogized that setting a speed limit does not of itself reduce accidents, since other factors: alcohol use, fatigue, etc. also contribute to. these.

[86] In cross-examination, he was clear that it is not the mere visual impact ofa bilingual sign

that is important, it is the recognition of the equality of French to English that is symbolic,

[87] Dr .. Breton is a sociologist of note having received the Order of Canada and four honorary doctorates. He is a professor emeritus at the University of Toronto and has taught at the University of Montreal, at McGill, John Hopkins and Harvard. He has published numerous books and articles, he authored o.f co-authored among them WHY DISUNITY? An Analysis of Linguistic and Regional Cleavages in. Canada. His article on Institutional Completeness of Ethnic Communities· and the Personal Relatio.ns of Immigrants published in the American Jo.urnal of SociolQgy was used in the Lalonde v. Ontario (Commission de restructuration des services de sante) (2001),56 O.R (3d) 505 case.

JUDGES' CHAMBERS

Fax 6132391507

Aug 20 2010 11;40am P016/032

Page: 15

[88] Dr. Breton's evidence was challenged by the applicant on the. basis that he has allegedly written, in a report not tendered :in evidence, that the position of the French language and the Francophone community in Quebec are still in danger despite the implementation of their Charter over a decade ago. Therefore, the submission is that the risk to the Francophone population in the Township of Russell will still exist and the By-law will not assist in the eventual prevention of assimilation.

[89] The evidence of the respondent's experts clearly point out the significant differences in

the Russell situation and that in Quebec. No analogies can be drawn as the applicants suggest.

[90] I accept the evidence of this expert.

Mr. Fran£ois Benoit

[91) FrancoisBenoit is the «Direeteur de I'Education et le secretaire tresorier du Conseil des

.ecoles publiques de I'Est de l'Ontario (CEPEO) ».

[92] The CEPEO arose out of the Ontario government's implementation of the rights of language minorities pursuant to section 23 of the Charter.

[93] More than 11,000 students attend these 37 French public schools. including primary and secondary. The geographic region served includes the villages of Embrun, Russell, Limoges and Marionville (all in the Township of Russell).

[94] Mr. Benoit's, views on the issue before us are set out below:

(3)

(1)

Le CEPEO a pour mandat d'offrir une education de qualite en langue francaise et de favoriser la transmission .. la protection et lavalorisation de sa langue et de la culture francaise it ses eleves, un mandat qui est intrinsequement lie a la reussite scolaire de. ses eleves, Dans cette optique, le CEPEO cherche a favoriser la vitalite linguistique et culturelle de la communaute francophone qu'il dessert. Le mandat . comprend d'assurer Ia protection, la valorisation et la transmission de langue et de la culture francaise a ses eleves.

Le CEPEO doit ainsi favoriser le developpement de I'identite personnelle, linguistique et culturelle de ses eleves dans le but de solidifier leur sentiment d' appartenance a une communaute francophone dynamique, Le CEPEO a l'obligation pedagogique et constitutionnelle d'encourager, de promouvoir et de contribuer a creer un espace francophone valorisant la langue franeaise de maniere a favoriser le developpement identitaire de ses 6leves et leur capaeite a apprendre et a communiquer en francais.

(2)

L' ecole constitue un des trois elements clefs dans cette construction identitaire, Les autres elements clefs sont la famille des eleves et leur errvironnement social. Ensemble, ces differents milieux constituent un balancier compensateur qui permet de rehausser la vitalite Iinguistique identitaire et culturelle de Ia langue francaise afin de faire contrepoids a la dominance de la langue et dn milieu

anglophone qui caracterise l'Ontario. '

(6)

(7)

JUDGES' CHAMBERS

Fax 6132391507

Aug LU LUlU 11:4Uam PU1(IU~Z

Page: 16

(4)

Ces commentaires au sujet du reglement de la municipalite de Russell sont done vu de cette optique. Le reglement a pour effet d'accroitre Ia visibilite de la langue francaise dans la sphere communantaire. Lereglement contribue ainsi a la mise en valeur de la 'langue francaise dans le milieu communautaire en dehors des enceintes de 1: ecole et de la famille.

(5)

Le reglement contribue aussi it renforcer la perception des parents que la langue franeaise et celle de leurs enfants frequentant les eccles du CEPEO que Ia langue . franeaise est importante et vivante dans la communaute comme a I' ecole. Dans un tel contexte, l'emploi de la langue francaise suggere aux eleves qu'elle est aussi une langue d'affaires et du commerce. Cela renforce l'Idee selon laquelle le bilinguisme constitue une valeur ajoutee pour les eleves du CEPEO sur le marche du travail. Par ailleurs, Ie reglement envoie le signal que le francais constitue un moyen de communication valable et valorise dans la communaute tout comme a I'ecole et Ii la maison, Ultimenient, le reglement pennet de reequilibrer, voir de contrecarrer, l'interaction des eleves du CEPEO avec les forces majoritaires de l'anglais en rendant davantage visible la communaute francophone et en justifiant 1 'utilisation du francais,

En effet, Ie reglement favorise et facilite la realisation du mandat du CEPEO, de mettre en valeur le francais dans toutes les spheres d'activite des 6leves, y compris dans [leur] espace comrmmantaire.

L'adoption du reglement .. _ est en soi porteur d'un message important: elle temoigne de la vitalite, du statut et de l'importance du francais dans la communaute aux yeux des representants elus du canton de Russell.

[95] I find the evidence of this witness to be credible and compelling.

DISCUSSION

Standing to Bring These Applications

[96] The defendant Township challenges the standing of each applicant to maintain his action.

[97] The grant of standing is a discretionary one.

[98] For standing to be granted, the traditional view is that a nexus must exist between the

impugned legislation and the person seeking to challenge it

[99] Over time and particularly after the Constitution Act, 1982, we see the extension of standing beyond the traditional parties, on the basis of public interest. Standing, on this latter basis, is not required nor should it be allowed where the legislation or measure can be attacked in the "traditional" way.

(100] Each applicant in this case must show that he has a particular or personal interest or that he has been directly affected by the legislation he seeks to attack; or there must be no other reasonable and effective manner in which the issue may be brought before the Court. In such a

JUDGES' CHAMBERS

Fax 6132391507

Aug 20 2010 11;40am P018/032

Page: 17

case, public interest standing may be granted. Ai> set out in Ely & Zel 's Inc. v, Ontario (Attorney General), [1993] 3 S.C.R. 675 at p. 688~ the applicant bears the onus of demonstrating that the requirements for granting public interest standing have been met.

[101] Standing is sometimes denied for a variety of reasons which may impact theexercise of discretion by the court. Some are listed in the text by P.W. Hogg, Constitutional Law of Canada, 5th ed, v. 2100seleaf (Toronto: Carswell, 2007) at pp. 59-3; and in Finlay v. Canada (Minister of Finance), [1986] 2 S.C.R 607 at paragraphs 32-35:

(a) to avoid opening the flood gates to unnecessary litigation;

(b) to screen out the mere busy body;

(c) to ration' scarce judicial resources by applying them to real rather than hypothetical disputes; and

(d) to avoid the riskthat cases will be inadequately presented by parties who have no real interest in the outcome.

[102] In Canada (Minister of Justice) v Borowski, [1981] 2 S.C.R. 575 (S:C.C.) dissenting C.J. Laskin provided an overview of how courts view the issue. of standing:

... as a general rule, it is not open to a person, simply because he is a citizen and a taxpayer or is either the one or the other, to invoke thejurisdiction of a competent court to obtain a ruling on the interpretation or application of legislation, or on its validity; when that person is not either directly affected by the legislation or is not threatened by sanctions for an alleged violation of the legislation. Mere distaste

has never been a ground upon which to seek the assistance of a court. a

challenger must show some special interest in the operation of the legislation .

[103] According to Laskin C.J., the purpose to be served by the courts is the following:

They are dispute-resolving tribunals, established to determine contested rights or claims between or against persons or to determine their penal or criminal liability when charged with offences prosecuted by agents of the Crown.

The dissent held that standing should be denied.

[104] As an example, where a concerned corporate citizen, in Village Bay Preservation Society and Mayne Airfield Inc. (1982), 136 D.LR. (3d) 729 (B.C.S.C.) challenged the proposed use of land as an airstrip, the court held that because it had no particular interest and suffered no injury ordamage peculiar to itself and owned no property in the area, it had no standing to apply for an order quashing an approval for that use of land.

[105] In R, ll. Banks, 84 O.R (3d) 1 (C.A) at p. 11 (sometimes referred to as the Squeegee case), the Court was dealing with the constitutionality of a Section of an Act under which many

people had been charged. .

JUDGES' CHAMBERS

Fax 6132391507

Aug 20 2010 11:41am PU19/U32

Page: 18

[106]. No party bad invoked the court's jurisdiction to accord public interest standing. Even if it had, the court was of the view that there were other reasonable and effectiveways in which the question at issue could be brought before the court The impugned sections were not the ones under which the particular accused had been charged. The court held that if and when persons charged with those should come before the court, such a challenge would enable the court to decide constitutional questions on the basis of tactual dispute, rather than on a hypothetical basis. Standing was denied as the Supreme Court of Canada bas stated, "Charter cases should not be considered in a factual vaccuum": Vrlend v. Alberta, [1998] 1 S.C.R. 493~ 156 D.L.R. (4th) 385, at para. 199.

[107] There are exceptions.

[108] Firstly, a challenge is permitted if otherwise the illegality of particular legislation such as expenditure of funds would go unchallenged,

[109] This principle was relied on by the Supreme Court of Canada in Thorson v. Canada (Attorney General), [1975] 1 S.C.R. 138 (S.C.C.), when adeclaratory and directory statute, the Official Languages Act (1968-69) (Can.) c.54) was being challenged together with the appropriation of money to administer. it and the federal Attorney General had already denied a request to seek a reference on the issue. The court held that it could grant standing to challenge such a declaratory statute since it created no offence and imposed no penalties and if standing were denied, there would be no practical and reasonable way to test its validity.

[II 0]. In Borowski, supra, the provisions of the Criminal Code permitting abortions were challenged by a citizen. The dissenting view was the traditional one: no standing should be granted because the applicant had no personal interest. However; Martland J., writing for the majority, at page 598, said that with this legislation in question, which was not merely declaratory, as in Thorson, supra, but exempted conduct which otherwise would be criminal, there were no persons who could effectively challenge it. As an example, a pregnant woman could not wait through the lengthy court processes. Therefore, standing should be granted as there was no other reasonable or effective way to bri~g the matter before the Court,

[111] In Finlay v. Canada (Minister of Finance), supra, the Supreme Court of Canada dealt with a non-constitutional challenge by a private individual to the statute dealing with federal cost-sharing payments, Justice Le Dain proposed determining standing by asking the following questions:

1. Does the respondent have a sufficient personal interest in the legality of the federal cost-sharing payments to bring him-within the general requirement for standing to challenge an exercise of statutory authority by an action for a declaration or an injunction?

2. If not, does the Court have a discretion to recognize public interest standing in the circumstances of the present case?

3 _ If the Court does have such a discretion should it be exercised in favour of the respondent?

JUDGES' CHAMBERS

Fax 6132391507

Aug 2U 2U1U 11:41am PU2U/UjZ

Page: 19

[112] Justice Le Dam went on to approve of much of Laskin C,J.'s dissenting comments in Borowski, supra, and summed up:

The traditional judicial concerns about the expansion of public interest standing may be summarized as follows: the concemabout the allocation of scarce judicial resources and the need to screen out the mere busybody; the concern that in the determination of issues the courts should have the benefit of the contending points of view of those most directly affected by them; and the concern about the proper role of the courts and their constitutional relationship to the other branches of government.

[113J Notwithstanding the expansion of the traditional view of standing, this does not mean that there is to be a blanket approval to grant public interest standing to all who wish to litigate an issue, On the contrary, in Hy & Zez's Inc. v.iOntario (Attorney General), supra, Major J_ cited with approval the comments. of Cory J. in Canadian Council of Churches v. Canada (Minister of Employment and Immigration), [1992] 1 S.C,R. 236 (S.C,C.) at p. 252-53, where, after outlining the development and rationale behind public interest standing. Cory J. warned against its abuse

and against expanding its availability, .

'" I would stress that the recognition of the need to grant public interest standing in some circumstances does not amount to a blanket approval to grant standing to all who wish to litigate an issue. It is essential that a balance be struck between ensuring access to the courts and preserving judicial resources. It would be disastrous if the courts were allowed to become hopelessly overburdened as a result of the unnecessary proliferation of marginal or redundant suits brought by a well-meaning organizations pursuing their own particular cases certain in the knowledge that their cause is all important. It would be detrimental, if not devastating, to our system of justice and unfair to private litigants.

Mr. Galganov and Standing

[114] Mr. Galganov has not shown he has any particular personal interest in the sign By-law nor that he is directly affected by the By-law, He does not reside in the Township; he does not operate a business there,

[115] The placement of a hand-lettered sign in the barbershop window does not qualify as operating a business. He maintained that although the sign advertises Galganov Consulting, he is not paid for any advice he may give when people contact him, His evidence was that most contacts related to language issues raised in this litigation.

[116] .He has made a show of joining the Russell Chamber of Commerce by providing a Cheque in front of the media which he had invited, He admits it has never been cashed.

[117] I find that Mr. Galganov is not directly affected by the By-law and does not have a direct

interest in the By-law. .

[118] Nor has Mr. Galganov satisfied the onus on him to demonstrate any need to grant him. public interest standing,

JUDGES' CHAMBERS

Fax 6132391507

Aug 20 2010 11;41am PUL1/U32

Page: 20

[119] There are other reasonable and effective ways by which the issue of the validity of the By-law may be brought before the Court by persons having a direct interest.

[120] I find. as a matter of both fact and law that Mr. Galganov has no standing to bring this application-

[121] His claim. is dismissed with costs.

Mr. Brisson and Standing

[122] ML Brisson must prove to the Court either a direct interest in the By-law or that he is affected by it.

[123] Mr. Brisson is a long-time resident of the region who owns and operates a radiator and repair shop. As stated above, he has now changed his sign, after 34 years, to one that is only in French.

[124] He admits having erected his sign all in French (save for the name of his business) in order to contest the By-law.

I [125] He stated publicly that he would welcome a warning and a charge and "I'll ignore that too [ ... ] eventually we'll end up in Court which is exactly where I want to go with this".

[126] Mr. Brisson is well-known as a political activist He has challenged laws, rules and authorities. Since 1991, he has refused to file any income tax returns, federalor provincial.rand refused to collect sales tax from his customers. Again in 1991, he burned his vendor's permit in front of media to show his disregard of directives from government authorities. He has opposed the seat belt law, has not paid fines and was once incarcerated for 105 days.

[127] He was not successful in bringing a constitutional challenge in 1998 and again in 2000 when he attempted to prove that a driver's licence was a constitutional right and not a privilege.

[128] Although he has admitted that he considers it good business practice for commercial signs to be bilingual in Russell since it is, according to him, 50-50 French-English, he nevertheless objects to being told that he is not free to use one language exclusively on his sign.

[129] It is submitted by the Township of Russell that Mr. Brisson brings this lawsuit despite having flouted his responsibility as a citizen to obey laws of various kinds and that standing should not be granted.

[130] With respect; that is not a consideration which should enter into this debate.

[131] I find that Mr. Brisson has shown a direct interest in the By-law. At the moment, he has a new sign for which he cannot obtain the required permit because he is in breach of the By-law in

question, .:

[132] Accordingly, I grant him standing on that basis.

JUDGES' CHAMBERS

Fax 6132391507

Aug 20 2010 11;41am P022/032

Page: 21

ULTRA VIRES

[133] TIle applicant claims that the By-law is ultra vires of the powers of a municipality.

Municipal Powers to Deal. with Languages

[134] Counsel for the applicant submits that Ontario Courts "have already twice held that a municipality does not have the powers to pass a language by-law which makes the use of a - certain language compulsory in an. area outside the workings of the municipality. itself'. He cited Trumble et al and Town of Kapuskasing, (1994) 57 O.R. (2d) 139, and Chaperon v_ Sauit Ste. Marie (City) (1994); 19 O.R. (3d) 281 (Ont. Ct).

[135] Moreover, it is submitted that courts must be vigilant in ensuring that municipalities do not impinge on the civil or common law rights of citizens by passing ultra vires laws. (R. v. Greenbaum, [1993] 1 .S.C.R. 674 (S.C.C.». and R. v. Sharma, [1993] 1 S.C.R. 650 (S.C.C.».

[136] The dates when these decisions were rendered are important to note as over the .next ten years, the jurisprudential landscape changed.

[137] There are now specific interpretive principles applicable to the rights of French-speaking communities.

[138] The Court of Appeal of Ontario in Lalonde, supra at paragraph 132 stated:

It is now clear, ... that language rights are to be treated as fundamental human rights and accorded a generous interpretation by the courts.

[139] The Court of Appeal also held that language rights, must, in all cases, be interpreted purposively and generously, a departure from the reasoning relied on by the applicant in Kapuskasing, supra, Sault Ste. Marie, supra, and Societe des Acadiens du Nouveau-Brunswick Inc. v. Assn. of Parents for Fairness in Education, Grand Falls District 50 Branch, [1986] 1 S.C.R. 549 where restrictive interpretations had been applied. The Court pointed out:

[136] More recently, in R. v. Beaulac, [1999] 1 S.C.R 768 at pp. 791-92, 173 D.L.R. (4th) 193, the Supreme Court flatly rejected the narrow approach of Societe des Acadiens and held that a purposive and generous interpretation of language rights wascalledfor:

Language rights must in all cases be interpreted purposively, in a manner consistent with the preservation and development of official language communities in Canada .... The fear that a liberal interpretation of language rights will make provinces less willing to become involved in the geographical extension of those rights is inc.onsistentwiththe requirement that language rights . be interpreted as a fundamental tool for the preservation and protection of official language communities where they do apply.

JUDGES' CHAMBERS

Fax 6132391507

Page: 22

[ ... J

[137] We Dote that in Beaulac, the. court was interpreting language rights conferred by the provisions of the Criminal Code, R.S.C. 1985, c. C-A6, and that the interpretive approach enunciated applies both to language rights conferred by ordinary legislation as well as to constitutional guarantees.

[140] Still in Lalonde, supra, the Court of Appeal held that subsection 16(3) of the Charter: builds on the principle established in Jones v. New Brunswick (A. G.) (1974), [1975] 2 S.C.R. 182 that the Constitution's language guarantees are a "floor" and not a "ceiling" and reflects an aspirational element of advancement toward substantive equality. The aspirational element of s. 16(3) is not 'Without significance when it comes to interpreting legislation.

[141] Russell submits that the Court must take into account several of the factors set out in the preamble to the Franco-Ontarian Emblem Act, 2001, S.O. 2001, c. 5:

(a) the French language has been present in Ontario for 350 years;

(b) the Ontario French-speaking community is the largest French-speaking community in Canada outside Quebec;

(c) in Ontario, French is recognized as an official language in the courts, in education and in the Legislative Assembly; and

(d) the Legislative Assembly recognizes the contribution of the cultural heritage of the French speaking population and wishes to preserve it for future generations.

[142] I concludethat the applicant is in error in submitting that legislation regarding language is not within the power of the Township of Russell. This is not legislatioQ about language but

about a power granted to the Township by the enabling statute. .

Municipal Powers Generally

[143) The applicant placed much weight on the effectiveness or lack thereof of the By-law to achieve its stated purpose. Case law does not support this position.

[144] In 114957 Canada Ltee (Spraytech, Societe d'arrosage) v. Hudson (Town), [2001] 2 S.C.R. 241 (S.C.C.), the town of Hudson passed a by-law outlawing pesticides. In 2004, the case reached the Supreme Court of Canada, which commented that it did not have to decide whether there was an actual threat to the environment or the health of its citizens, it merely had to decide whether the town bad acted within its authority in enacting the By-law.

[145] In 2005, in Toronto Taxi Alliance Inc, v. Toronto (City), 77 O.R. (3d) 721, at page 46, the Ontario Court of Appeal said "A reviewing court should not second-guess the municipality as to whether the by-law will be more or less effective in achieving the intended. purpose or purposes."

JUDGES' CHAMBERS

Fax 6132391501

Aug 20 2010 11;d1am P02d/032

Page: 23

[146] Accordingly, in the case at bar, there is no need to decide whether the bilingual sign By-law will affect assimilation.I only need to decide whether Russell acted within its authority.

[147] There has been another evolution in the relevant jurisprudence - that of how courts have come to view municipal powers conferred by, or necessarily implied by statutes.

[148J In determining whether the By-law is ultra vires, one must consider the enabling statute. It is found in the Municipal Act, 2001, S.O. 2001, c.25. Section 11 of that Act sets out the following:

SPHERES OF JtJRlSDICTION

Broad authority, lower-tier and upper-tier municipalities

11. (1) A lower-tier municipality and an upper-tier municipality may provide any service orthing that the municipality considers necessary or desirable for the public, subject to the rules set out in subsection (4). 2006, c. 32, Sched, A, s. 8.

By-laws

(2) A lower-tier municipality and an upper-tier municipality may pass by-laws,

subject to the niles set outinsubsection (4), respecting the following matters: .

I ... J

5. Economic, social and environmental well-being of the municipality.

6. Health. safety and well-being of persons.

7; Services and things that the municipality is authorized to provide under

subsection (l). .

8. Protection of persons and property, including consumer protection. 2006, c. 32,

Sched. A, s, 8. . .

By-laws rei matters within spheres of jurisdiction

(3) A lower-tier municipality and an upper-tier municipality may pass by-laws, subject to the rules set out in subsection (4), respecting matters within the following

spheres of jurisdiction: .

[ ... J

5. Culture, parks, recreation and heritage.

[ ... ]

7. Structures, including fences and signs.

[ . -l

10. Economic development services.

11. Business licensing. 2006, c. 32, Sehed, A, s. 8.

[149] The Township enacted this By-law regarding signs pursuant to 11 (3)7 of that Act.

[150] The onus is on the applicant to prove the ultra vires nature of the By-law.

JUUut~' CHAM~tK~

rax til::li::J!:ll!:lUI

Aug ZU ZUlU 11:4lam PUi!:l/U::Ji

Page: 24

[151] I have already set out the facts as to how this By-law came to be. First, the initial request came from a citizen, then a public meeting at which 300 people attended and many spoke; a further opportunity to ask questions; a petition; a special sub-committee-set up to examine the issue - all before a vote by Council.

[152] In 2004) in City of Calgary v, United Taxi Drivers' Fellowship, [2004] 1 S.C.R. 485 (S.C.c.) Bastarache L, fur the majority, expressed the following:

6 The evolution of the modern municipality has produced a shift in the proper approach to the interpretation of statutes empowering municipalities. 1hls notable shift in the nature of municipalities was acknowledged by McLachlin 1. (as she then was) in Shell Canada Products Ltd v, Vancouver (City), [1994] 1 S.C.R. 231, at pp. 244-45. The "benevolent" and "strict" construction dichotomy has been set aside, and a broad and purposive approach to the interpretation of municipal powers has been embraced: Nanaimo, supra, at para, 18. Ibis interpretive approach has evolved concomitantly with the modem method of drafting municipal legislation. Several provinces have moved away from the practice of granting municipalities specific powers in particular subject areas, choosing instead to confer them broad authority over generally defined matters:

The Municipal Act, S.M. 1996, c. 58, C.C.S.M. c. M225~ Municipal Government. Act, S.N.S. 1998, c. 18; Municipal Act, R.8.Y. 2002, c. 154; Municipal Act, 2001, S.o. 2001, c. 25; The Cities Act, 8.S. 2002, c. C-ll.1.

[153] The By-law's purpose is to promote the equality of the two languages and to provide a linguistic landscape which can promote the use of French in all spheres of life, including the commercial community. Therefore, not only must this legislation be interpreted generously, it must be interpreted purposively.

""

[154] In Spraytech, supra, atparagraph 249, reference is made in the majority decision to the current "era in which matters of governance are often examined through the lens of the principle of subsidiary. This is the proposition that law-making and implementation are often best achieved at a level of government that is not only effective, but also closest to the citizens affected and thus most responsive to their needs, to local distinctiveness, and to population diversity. "

Intervenor's Position on Ultra Vires

[155J r":AFMOfut creee en 1989 comme societe a but non lucrative afin de revendiquer Ie maintien et I'amelioration de la gourvemance et de la prestation des services municipaux dans les deux langues officielles. Elle est un forum pour les personnes elues et les cadres francophones des corporations municipales et elle maintient des liens avec les associations' francophones du Nouveau Brunswick, du Manitoba, du Quebec et avec la Federation canadienne des municipalites du Canada.

[156} UAFMO est composes de 34 membres qui sent des corporations municipales et de 45 membres associes, representant differents secteurs de la communaute, des organismes provinciaux et municipaux de I'Ontario incluant certains sous-ministres de l'Ontario.

JUDGES' CHAMBERS

Fax 6132391507

Aug 20 2U1U 11;42am PU2o/UJ2

Page: 25

[157] Une des priorites de rAFMO est de revendiquer le maintien et I'amelioration des services municipaux en anglais et en francais dans la province de I'Ontaric, Parmi Ies objectifs de l' AFMO. elle cherche a SeMI' de porte-parole des membres dans les dossiers d'interets communs et de promouvoir et encourager I 'utilisation de la langue francaise dans les affaires municipales,

[158] Elle affirme que la norme de controle judiciaire applicable pour determiner si un reglement est ultra vires est celui de la decision correcte,

[159] L' AFMO soutient que le reglement en question tombe 'clairement sous le pouvoir de reglementer dans les domaines de competence it la fois des enseignes, de la culture et du patrimoine au sein de la municipalite de Russell. Il n'y aucune limite it la competencerelative aux enseignes ni de la culture et Ie patrimoine.

[160) U AFMO soutient que les enonces de droit dans les affaires Kapuskasing, supra et Sault Ste. Marie, supra, font etat d'un droit qui ne s'applique plus. Je m'accorde avec cette affirmation.

[161 J De plus, l'intervenante rappelle que trois autres municipalites, Clarence-Rockland, La Nation, Casselman. ont deja regi I'affichage commercial exigeant le bilinguisme. Le reglement de Russell fait maintenanr partie du climat municipal de la region de PEst de I'Ontario.

[162] Selon les dires de l' AFMO, Ia loi municipale a ete modifiee 'en 2006. pour assurer, entre autre qu'il y aurait une mterpretation large aux pouvoirs de la municipalite « pour lui permettre degerer ses affaires de la facon qu'elle estime appropriee et pour ameliorer sa capacite de traiter les questions d'interet municipal. »

Conclusion on Ultra VII'e.f

[163] A court should not substitute its views for those of elected bodies who serve their electorate and decide what is best for its citizens.

[164] Given that there is Xl,O evidence to the contrary and having regard to the enabling statute, and the modem principles of interpretation of municipal powers asset out in the jurisprudence, I conclude that the By- law is intra vires and a proper exercise of power by the T ownship.

CANADIAN CHARTER OF RIGHTS AND FREEDOMS - SECTION 2(8)

[165] The next attack on the By-law is based on a claimed violation of the applicant's rights pursuant to section 2(b) of the Canadian Charter of Rights and Freedoms (1982).

2. Everyone has the following fundamental freedoms: [ ... ]

(b) freedom of thought, belief, opinion and expression, ...

[166] Mr. Brisson claims that his freedom of expression is denied him because the By-law is an attempt to compel bilingualism on the residents of Russell. As such it is an attack on the

JUDGES' CHAMBERS

Fax 6132391507

Aug 2U 2U1U 11;42am PU2(/Uj2

Page: 26

constitutionally protected linguistic and cultural rights of the Franco-Ontarian community. He claims the right to have his sign only in French.

[167] The respondent Township does not challenge the fact that freedom of expression extends to commercial expression but states that this is not a case "Where someone does not have the opportunity of expressing himself or herself in the official language of choice on a commercial sign. Everyone subject to this By-law can do so fully and freely.

[168] The only provision is that the other language must be present and both must be equal in every respect.

[169] In Devine v. Quebec (Attorney General), [1988] 2 S.C.R 790 (S.C.C.), it was held that if one is forced to speak the other language - that is a breach of one's right to freedom of expression. However, the Court found that while there is a right to express oneself in a language of one's choice, there is no corresponding right to express oneselfexclusively in one's own language.

[170] According to this By-law, one has to use more than one's language of choice. There is no prohibition of the use of English or of French nor compulsion to use one or the other exclusively.

[171] In Irwin Toy Ltd v. Quebec (Attorney General), [1989] 1 S.C.R. 927 (S.C.C.), the steps of the test to be applied to considerations of freedom of expression are laid out.

a) Does the By-law restrict any activity which conveys a meaning?

[172] The applicant has not presented any evidence that the inability to erect a new exterior sign in only one official language is an "activity which conveys meaning". He has not met the first step of the required analysis.

b) What is thepur,pose and effect of the By: .. Jaw?

[173] The purpose of the By-law is to provide a symbolic representation of the equality of English and French thereby protecting and promoting the use of French.

c) Was the eff!;ct of the government action to restrict the freedom of expression?

[174J The onus is on the applicant to establish that his freedom of expression was restricted. He has not done so. He can freely choose the thought or content he wishes to convey. He must simply do so in the other language as well.

[175J Even if the By-law itself did have the effect of restricting freedom of expression, the question would then arise as to whether it would be saved by section 1 of the Charter.

1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

[176] Two central criteria must be satisfied to establish that a limit is reasonable and demonstrably justified in a free and democratic society:

JUDGES' CHAMBERS

Fax 6132391501

Aug 2U ZU1U 11;42am PU2~/UJ2

Page: 27

(a) The objective to be served by the measures limiting a Charter right must be sufficiently important to warrant overriding a constitutionally protected right or freedom.

(b) The party invoking section 1 of the Charter must show the means to be reasonable and demonstrably justified, This involves the following proportionality test:

(i) The measures must be fair and not arbitrary, carefully designed to achieve the objective in question. and rationally. connected to that objective;

(ii) In addition, the means should impair the right in question as little as possible;

(iii) Lastly, there must be proportionality between the deleterious effects of the by-law and the objective, and there must be a proportionality between the deleterious and the salutary effects of the measures.

R. v. Oakes, [1986] i S.C.R. 103 (S.C.C.); Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835 (S.C_c.).

(a) The By-Law's Objective is Sufficiently Important

[177] Russell's objective relates to the protection of its French speaking community, a legitimate societal concern which is pressing and substantial in the Township.

[178] The purpose of the By-law is remedial. The By-law is an example of the use of subsection 16(3) of the Charter to build on the language rights contained in the Constitution in order to further a pressing and substantial objective, namely the advancement of the equality of the status or use of the French language.

[179J The Township of Russell submits that the By-law is properly characterized as an attempt to supplement the constitutionally protected rights of its French speaking community, a goal that is particularly pressing given the historical, statistical, political, and symbolic considerations summarized above.

[180] Russell has established the vulnerability of the French language in its territory and this is the reason for the language policy reflected in the By-law. The By-law is a response to a substantial and pressing need.

[181] Russell has also established that the aim of the language policy underlying the By-law is a serious and legitimate one, namely to protect and assist the survival of the French language while promoting the equality of French and English.

(b) The-By-Law is Reasonable and Demonstrably Justified

[182] The By-law is fair, not arbitrary, but is carefully designed to achieve Russell's objective and rationally connected to that objective.

JUDGES' CHAMBERS

Fax 6132391507

Aug 20 201U 11;4Zam PUZ9/U~Z

Page: 28

[183] The rational link between on the one hand, ensuring residents of Russell are able to read new exterior commercial signs in the official language of their choice and, on the other hand, the protection of the French language and culture in Russell, is clear and obvious.

[184] The test for section l applicability also provides that the means used to reach the objective should. impair the right in question as little as possible.

[1851 Russell submits that a failure to satisfy this portion of the test will be found only if there are measures "clearly superior to the measures currently in use. (Lavigne v_ Ontario Public . Service Employees Union, [1991] 2 S.C.R. 211 at paragraph 170). The Supreme Court of Canada, at paragraph 168 explained:

It seems to me that this Court has agreed that a form of "reasonableness" test may be preferable to a strict application of the minimal impairment branch of Oakes in those circumstances where the Legislature must mediate between the claims of competing groups, and especially where, in, doing so) it opts to protect the interests of the disadvantaged and disempowered. In those cases, the Court will defer to the choice of the legislature so long as alternative measures for meeting or promoting the government's goals are not clearly superior.

[186] There is no evidence that any alternative measures exist to promote the equality of English and French on commercial signs. As the Supreme Court has held in Libman v. Quebec (Attorney General), [1997] 3 S.C.R. 569 at paragraph 59:

This Court has already pointed out on a number of occasions that in the social, economic and political spheres, where the legislature must reconcile competing interests in choosing one policy among several that might be acceptable, the courts must accord great deference to the legislature's choice because it is in the best position to make such a choice.

[187] The By-law has an important objective and it sets a reasonable limit on the ability-to post commercial signs in one language. I find it is justified for the reasons set out above and therefore section 1 is available should it be required. It is not.

ConClusion Regarding Section 2(!tl

[188] I find there is no violation of section 2(b) of the Charter and Mr. Brisson's right to freedom of expression is intact.

CANADIAN CHARTER OF RIGHTS AVD FREEDOMS- SECTION 15 (1)

[189] The applicant allegesthat Russell has breached his rights to equality as guaranteed by section 15(1) of the Chatter:

15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin. colour, religion, sex, age or mental or physical disability.

JUDGES' CHAMBERS

Fax 6132391507

Aug 20 2010 11:42am P030/032

Page: 29

[190] Subsection 15(1) of the Charter is aimed at preventing discriminatory distinctions that impact adversely on members of groups identified by the grounds enumerated in subsection 15(1) and analogous grounds. (R. v. Kapp, [2008] 2 S.C.R. 483 at paragraph 16)

[191] There are two reasons why the applicant's submission has no merit:

(1) language is not a prohibited enumerated or analogous ground; and

(2) subsection 16(3) of the Charter, which sets out:

(3) Nothing in this Charter limits the authority of Parliament or a legislature to advance the equality of status or use of English and French.

[192] Subsection 16(3) of the Charter therefore shields the By-law from attack under subsection 15(1) of the Charter.

[193] InLalonde, supra, at paragraph 92, the Court of Appeal for Ontario has also unanimously

held that: .

The operative legal effect of s. 16(3) is determined and limited by its opening words: "Nothing in this Charter limits the authority of Parliament or a legislature". Section 16(3) is not a rights-conferring provision. It is, rather, a provision designed to shield from attack government action that would otherwise contravene s. 15 or exceed legislative authority. See Andre Tremblay and Michel Bastarache, "Language Rights" in Gerald-A. Beaudoin & Ed Ratushny eds., The Canadian Charter of Rights and Freedoms, 2nd ed. (l989) at 675:

What was actually desired with this provision [so 16(3)] was to assure that the power to provide a privileged status for French and English in a statute could not be challenged by virtue of the rights forbidding' discrimination contained in section 15 of the Charter. Section 16(3) could thus prevent the measures designed to promote equal access to both official languages from being struck down.

[194] Subsection 15(2) of the Charter provides:

(2) Subsection (1) does not preclude any law. program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. (84)

[195J Subsections 15(1) and 15(2) of the Charter work together to promote .the vision of substantive equality that underlies section 15 as a whole. (R. v. Kapp, supra, at paragraph 16). The Supreme Court of Canada explains that subsection 15(2) of the Charter:

JUDGES' CHAMBERS

Fax 6132391!JU{

Aug ZU LU IU I l.tWilil FUJ IfUJL

Page: 30

... is more than a hortatory admonition. It tells us, in simple clear language, that s. 15(1) cannot be read in a. way that finds an ameliorative program. aimed at combatting disadvantage to be discriminatory and in breach of s, 15.

[196] Still in Kapp, supra, it is said that a by-law does not violate subsection I5(l} of the Charter if:

(a) it has an ameliorative or remedial purpose; and

(b) it targets a disadvantaged group identified by the enumerated or analogous grounds. [197] The purpose of the By-law is to advance linguistic equality in Russell where a linguistically vulnerable Francophone population resides. It is ameliorative in its purpose.

[198] I conclude there is no breach of section 15(1).

BREACH OF INTERNATIONAL LAW

[199] The applicant also relies On the International Covenant on Civil and Political Rights (the "ICCPR") (1976 No. 47, 6 I.L.M. 368 entered into force 23 March 1976 and accession by Canada May 19, 1976).

[2001 The above is a treaty between sovereign states. Canada is the entity which has ratified it. Ontario could not become a party to the ICCPR.

(201] The ICCPR is not incorporated into domestic law and is therefore not enforceable in Canadian Courts and can have no domestic legal consequences. (Ahan) v. Canada, [2oo2J OJ. No. 431 (Ont C.A))

[202] TIlls argument is therefore devoid of merit and there has been no breach of international law.

Conclusi.on

[203] The answers to the questions posed in these two applications are as follows:

(I) Does the applicant have standing?

Mr. Galganov:

No.

His application is dismissed with costs.

Mr. Brisson:

Yes

(2) For Mr. Brisson, is there a violation of the right to freedom ofexpression?

No.

(3) For Mr. Brisson, is there a breach of section 15 of the Charter?

No.

JUDGES' CHAMBERS

Fax 6132391507

Page: 31

(4) For Mr. Brisson, does the ICCPR apply so that a breach has occurred?

No.

[204] Mr. Brisson's application is therefore dismissed with costs.

[205] I will receive written submissions on cost'; (maximum of five (5) pages). For the respondent, within thirty (30) days, for each applicant, Mr. Galganov and Mr. Brisson, within fifteen (15) days thereafter with aright to the respondent to reply within fifteen (15) days thereafter, if requited.

Released: August 20,2010