While 2014 brought a new liberal government to the province of Québec, it did not bring any respite from the enforcement of the Charter of the French Language (the “Charter”). We should expect the Charter to remain relevant to businesses operating in the province for the foreseeable future.
Indeed, on January 28th of this year, an important judgment was rendered by Judge Salvatore Mascia of the Québec Court in the matter of Attorney General of Québec v. Boulangerie Maxie’s. The judgment dealt with thirty different cases involving violations of the Charter for commercial signs that were not in French (s. 58), bilingual outdoor signage that did not respect the “markedly predominant” rule (s. 58), packaging that did not afford French equal space (s. 51) and postings on a unilingual English commercial website with no French equivalent (s. 52). The judgment dismissed a constitutional challenge to the validity and application of the Charter and also confirmed certain rules with respect to the application of the provisions relating to labelling and advertising in the province.
To summarize, the Court held that:
- The Québec government has jurisdiction because of the primary role of French in Québec;
- While there is a de minimis exemption for minor failures to comply with the Charter, such exception was inapplicable in this case;
- Size matters – in order to be markedly predominant, the French text must adhere to the 2-for-1 rule; and
- Both registered trademarks and common law trademarks which are “recognized” within the meaning of the Trade-marks Act are exempt from translation.
With respect to the constitutional challenge, it had two facets: one jurisdictional and the other rights-related. The jurisdictional facet applied to the defendants who posted in English only on their business websites; it was argued that the internet was subject to the exclusive jurisdiction of the federal government by virtue of its residual power and that the provinces therefore did not have the right to regulate the internet. On the second facet, the defendants argued that the Charter violated their fundamental rights and freedoms guaranteed by the Canadian Charter of Rights and Freedoms, namely their freedom of expression and their right to equality and liberty.
The want of jurisdiction argument was rejected by Judge Mascia; he concluded that the true purpose of the legislation was to regulate commerce in the province of Québec and, therefore, that the provincial legislator had jurisdiction. The true character of the legislation did not change simply because the medium used to advertise was the internet rather than traditional paper catalogues.
On the violation of rights argument, the Judge came to the conclusion that the preservation and enhancement of the French language was a sufficiently important objective to justify the limits imposed by the Charter on fundamental rights and freedoms.
On the application of the Charter, several arguments were raised by the defendants to dispute the charges. It was argued with respect to some charges that (1) the compulsory notice of default was insufficient, (2) the violations were minor and did not justify prosecution, and (3) the French language was predominant and/or that the trademark exemption applied.
On the issue of the sufficiency of the notices, Judge Mascia dismissed the argument by stating that the offences were obvious, that there was an invitation to communicate with the inspector if there were questions and that, in any event, ignorance of the law is not an excuse.
The judge considered the second argument and recognized the existence of a de minimis defence in the law of the province of Québec pursuant to which some violations could be so trivial that they would not warrant prosecution. Judge Mascia gave as examples a catalogue of hundreds of pages in both English and French save for a few English words that were not translated, or a large commercial sign where the “marked predominance” is only off by a question of mere millimeters. In the cases before the Court, the actions of the defendants were considered to be clear violations of the Charter and therefore not entitled to the de minimis defence. In fact, the judge held that a website in English only was a clear violation of the law and could not be considered trivial. Likewise, a sign is markedly predominant or it is not; where both signs are of the same size, it is clear that French is not markedly predominant.
With respect to the marked predominance of French, some defendants argued that posting a French sign before an English sign was sufficient to meet the criteria as it would, in their view, give French greater prominence. While there is a regulation that specifically sets out the requirements for French to be “markedly predominant”, the defendants argued that the use of the word “deemed” in the regulation clearly indicated that there were other ways to give the language marked predominance. The judge disagreed, stating that the regulation is an expression of what is to be considered markedly predominant. In fact, the French text must be given greater visual impact. With respect to the language of signs and the marked predominance of the French language, the Court held that “size does matter”.
It was also argued by two defendants that the offending English portion of their commercial sign or poster benefitted from the Charter’s recognized trademark exemption. Although none of the defendants’ trademarks were registered, Judge Mascia recognized from the outset that the exemption applied to both common law and registered trade-marks. He also reiterated that it was not up to the prosecution to prove that they did not benefit from the exemption, but rather that such burden fell upon the defendants. In order to successfully raise the trademark exemption, the Court held that the defendants had to establish that the words or the phrase in question were used to promote a product or a service in a distinctive manner. While one defendant was successful in meeting this threshold, the other failed on the grounds that his alleged mark did not constitute a trademark and was nothing more than a descriptor of the products offered by his company.
Since the defendants were unsuccessful in their constitutional challenge of the Charter, they were found guilty on all charges, save for one defendant who successfully invoked the trademark exemption. While the bulk of the judgment discusses the constitutional issues raised, it also provides a detailed analysis on the application of “common law” defences, notably the de minimis defence, the markedly predominant rule and the recognized trademark exemption.
By André Rivest & Melissa Tehrani, Gowling Lafleur Henderson LLP