Roman Catholic Diocese of London before the Ontario Superior Court of Justice
Dossier 189-03 02-GD-54677
ONTARIO SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Between
DAVID TREMBLAY, PAUL CHAVIN, ANDRÉ CHÉNIER,
ROGER ST-PIERRE ET PAUL TRÉPANIER
Applicants
and
THE CORPORATION OF THE TOWN OF LAKESHORE,
KIRK DORAN, Chief Building Official for
The Corporation of the Town of Lakeshore
Respondents
and
ROMAN CATHOLIC DIOCESE OF LONDON
Intervenor
THE COMMISSIONER OF OFFICIAL
LANGUAGES OF CANADA
Intervenor
FACTUM OF THE INTERVENOR
COMMISSIONER OF OFFICIAL LANGUAGES
Office of the Commissioner of Official Languages
344 Slater St., 3rd Floor
Ottawa, Ontario
K1A 0T8
Pascale Giguère
Tél. : (613) 995-0724
Téléc. : (613) 996-967
Solicitor for the Commissioner of Official Languages of Canada
TABLE OF CONTENTS
- Disputed government action
- Duty of the municipal Corporation to exercise its discretionary power in accordance with the constitutional principles and the fundamental values of our Canadian society.
- Unwritten constitutional principle of respect and protection of the Francophone minority and Canada's linguistic duality principle
OVERVIEW
"Canada's linguistic duality represents
a rosary of small communities like this one"
- Affidavit of Dyane Adam, sworn on November 19, 2002, at para. 22
1. The issue in this case is whether the respondents considered the applicable constitutional principles, as well as the fundamental values of our Canadian society, in exercising their discretion. More specifically, in the context of the applicants' request for designation pursuant to the Ontario Heritage Act, and the Roman Catholic Diocese of London's application to divide the land and demolish St. Joachim's Church, the respondents were required to act in the public interest by taking into account the unwritten principle of respect for the protection of minority rights and the principle of linguistic duality as a fundamental value of our society.
2. For the Commissioner of Official Languages, the significance of this case stems from the fact that issues that are raised with respect to the interpretation and application of the fundamental organizing principle of the protection of minorities will have a significant impact on the implementation of the constitutional commitment made by the Canadian State to encourage, at the federal, provincial and municipal levels, progress toward the equality of status and use of English and French in Canadian society.
3. The case before the Court is not limited to determining the fate of St. Joachim's church; rather, it concerns the institutional role of this church for the vitality and the development of the Francophone community of St. Joachim and the negative repercussions of the respondents' decisions on this role.
PART II - FACTS
4. St. Joachim Church was built in or about 1882, and has been home to several generations of inhabitants, from the first generation, which participated in its construction, to the present generation, which is currently participating in the effort to preserve the church.
- Affidavit of Paul Trépanier, sworn on October 31, 2002, at paras. 2 to 4
5. The members of this small Francophone community, without education or wealth, decided to get together and build a church on their own with funds from the community. The church's current site was chosen as the location for St. Joachim's cornerstone because the small Franco-Ontarian community at the time was looking for a church tower around which to organize its social, religious and cultural life.
- Affidavit of Paul Trépanier, sworn on October 31, 2002, at paras.10 to13 and 19
6. The first mass in the new St. Joachim Church was celebrated in French and the presbytery's first stone was blessed on June 17, 1882, by a Francophone bishop. The Francophone nature of St. Joachim Church, as the centre of Franco-Ontarian life, has continued to be reflected in the clergy who followed.
- Affidavit of Paul Trépanier, sworn on October 31, 2002, at paras. 21, 22 and 25
7. Many Francophone priests, French-Canadian members of religious orders, teachers and other professionals have passed through the halls of St. Joachim Church and gone on to serve the Francophone community in various ways, in the surrounding area and around the world.
- Affidavit of Paul Trépanier, sworn on October 31, 2002, at para. 29
8. In 1998, the Roman Catholic Diocese of London (hereinafter "the Diocese") decided to consolidate the parishes of St. Joachim, Annonciation and Our Lady of Lourdes into a single parish.
- Supplementary Affidavit of David Tremblay, sworn on November 26, 2002, at para. 2
9. When the idea of consolidating the parishes was presented, the Diocese assured parishioners that none of the churches would be closed. In fact, this consolidation meant that the priest's time schedule would be shared , but the churches would remain open and parishioners could maintain their identities and management responsibilities.
- Affidavit of David Tremblay, sworn on October 31, 2002, at para. 2
10. In March 2001, after some discussion with the community, parishioners learned in a newspaper article about the Diocese's intention to close, and possibly demolish, the consolidated parish's three churches.
- Supplementary Affidavit of David Tremblay, sworn on November 26, 2002, at para. 8
11. Later, the community met to develop and implement an action plan to save the churches of Pointe-aux-Roches and St. Joachim. Some 300 parishioners signed a petition requesting that the future of the churches be reconsidered.
- Supplementary Affidavit of David Tremblay, sworn on November 26, 2002, at para.10
12. On April 24, 2001, parishioners acting through the group "S.O.S. Églises" [S.O.S. Churches] made a request to the Town Council for the historic designation of St. Joachim Church. The group also requested that a local advisory committee be appointed under the Ontario Heritage Act. The provincial president of the Architectural Conservancy of Ontario also made a presentation and reminded the Town Council of its obligation under the Act to protect the architectural heritage of the area under their jurisdiction. Representatives from the Department of Tourism and Culture also made a detailed presentation on the benefits to the Town Council of setting up a local advisory committee.
- Supplementary Affidavit of David Tremblay, sworn on November 26, 2002, at paras.14 and 15
13. At a municipal Council meeting on October 22, 2001, Ms. Prince, Municipal Planner, presented a report, dated October 16, 2001, and recommended that the Council not make a decision on designating St. Joachim Church as historic until the new official plan for the Town of Lakeshore was adopted.
- Supplementary Affidavit of David Tremblay, sworn on November 26, 2002, at paras. 26 and 27
14. At that municipal meeting, David Tremblay again requested that St. Joachim Church be designated and a local advisory committee be appointed immediately, in order to preserve the historic buildings threatened with demolition. Moreover, he informed the Town Council that Rochester Township's (the location of St. Joachim Church) official plan contains a policy to preserve historical sites. Despite this information, which could have supported the request for the church to be designated a historical site, the Town Council nevertheless again postponed the decision to a later date.
- Supplementary Affidavit of David Tremblay, sworn on November 26, 2002, at para.29; Affidavit of David Tremblay in reply, sworn on November 1, 2002, at para. 22
15. On March 12, 2002, during a municipal Council meeting, the group S.O.S. Églises presented an official delegation, again requesting that St. Joachim Church be designated, and requesting that a local advisory committee be appointed. Before the meeting, the Town Council received a letter from the Diocese indicating that it was the church's owner and that it was opposed to the church being designated an historical site.
- Supplementary Affidavit of David Tremblay, sworn on November 26, 2002, at para.39; Affidavit of David Tremblay in reply, sworn on November 1, 2002, at paras. 23 and 24
16. At that meeting, municipal councillors Jack Morris and Tom Bain argued that the Town Council should refuse to make a decision on the request made by S.O.S. Églises because, according to them, it was an internal issue for the Diocese. Before David Tremblay had a chance to finish his submissions to the Town Council, a councillor pointed out that the Diocese was opposed to the designation for the time being. In response to that comment, Councillor Morris presented a resolution providing that all designations would have to be made on application by the owner, and, despite certain concerns expressed about that proposal on the part of other councillors, it was voted on and adopted.
- Supplementary Affidavit of David Tremblay, sworn on November 26, 2002, at paras. 40 to 42; Affidavit of David Tremblay in reply, sworn on November 1, 2002, at para. 24
17. The resolution also resulted in preventing S.O.S. Églises members from presenting their position to the Town Council.
- Supplementary Affidavit of David Tremblay, sworn on November 26, 2002, at para. 43
18. In mid-May 2002, the applicants learned that the Diocese was putting St. Joachim Church up for sale through a realtor. However, the sale of the land was conditional on the church being demolished.
- Supplementary Affidavit of David Tremblay, sworn on November 26, 2002, at paras. 46 to 48
19. In September 2002, David Tremblay learned that the Diocese was applying for a severance of the land on which St. Joachim sits. He appeared before Lakeshore's Committee of Adjustment, as a member of the public, to ask the Committee to deny the application by the Diocese. Before he spoke, the chair of the Committee told him that he did not want to hear anything about the entire issue of designating the site as historic or the importance of preserving the two churches for the Franco-Ontarian community.
- Affidavit of David Tremblay in reply, sworn on November 1, 2002, at para. 26.
20. At that meeting, David Tremblay also learned that the Diocese had applied for a demolition permit for St. Joachim Church. David Tremblay stated that the Adjustment Committee had to take into consideration the protection of Franco-Ontarian heritage, referring to Rochester Township's official plan which imposed such a duty on the municipality. He also indicated that the Franco-Ontarian community would suffer irreparable harm if the Diocese's severance application was granted, because such an application entailed the demolition of the church. A representative of the Committee informed him that, as a result of the October 12th resolution adopted by the municipality and its refusal to consider the designation request by SOS Églises, the Adjustment Committee could no longer consider that issue. The Committee therefore approved the severance application made by the Diocese.
- Affidavit of David Tremblay` in reply, sworn on November 1, 2002, at para. 27
21. On October 1, 2002, David Tremblay learned that Kirk Doran, the Chief Building Official of the Town of Lakeshore, had issued the demolition permit for St. Joachim Church.
- Affidavit of David Tremblay in reply, sworn on November 1, 2002, at para. 29
22. On October 6, 2002, S.O.S. Églises organized a rally to give the Franco-Ontarian community the chance to publicly demonstrate how important this institution was to them. More than 350 people attended. Those who attended formed a human chain around the church.
- Affidavit of David Tremblay in reply, sworn on November 1, 2002, at para. 30.
23. In their efforts to save St. Joachim Church, the applicants have received the support of the Heritage Canada Foundation and David Tsubouchi, Ontario Minister of Culture.
- Supplementary Affidavit of David Tremblay, sworn on November 26, 2002, at paras. 32 and 52
PART III - ISSUE
24. In refusing to consider the applicants' request for designation and in granting the applications for a severance and a demolition permit, did the municipal Corporation of Lakeshore exercise its discretionary powers having regard to the unwritten principle of the protection of minorities and the fundamental values of Canadian society?
PART IV - ARGUMENT
1. Disputed government action
25. The government action which is disputed in this proceeding is comprised of the following decisions:
- the Town Council's decision not to consider the designation request presented by the applicants pursuant to the Ontario Heritage Act;
- the Town Council's decision not to establish a local advisory committee which could have provided advice on the designation process; and
- the Town Council's Adjustment Committee decision to authorize the Diocese to proceed with the severance of the land on which the church is located and the decision of the Town's Chief Building Official delivering the demolition permit for St-Joachim Church.
- Supplementary affidavit of David Tremblay, sworn on November 26, 2002, at paras. 26 to 29 and 39 to 43; Affidavit of David Tremblay, sworn on November 1, 2002, at paras. 27 to 29
26. The Ontario Heritage Act [hereinafter "the Act"] gives municipalities the power to designate properties within a municipality to be of historic or architectural value or interest. For the purpose of exercising that power, the Act provides that municipalities may appoint a local architectural conservation advisory committee to advise the Council on matters relating to the Act.
- Ontario Heritage Act, R.S.O. 1990, c. O.18, Part IV
27. The purpose of the Act is to provide for the conservation, protection and preservation of the heritage of Ontario. In order to protect the heritage of Ontario, municipalities have been given the power to designate the properties of their choice and thus to suspend certain private property rights. Those provisions of the Act must be applied in such a way as to ensure the attainment of the legislature's objectives.
- St. Peter's Evangelical Lutheran Church, Ottawa v. City of Ottawa, [1982] 2 S.C.R. 616, at pp. 623-624
28. The Building Code Act, 1992, S.O., 1992, c. 23 provides that everyone must obtain a permit before demolishing a building. Furthermore, this Act specifically provides that the Chief Building Official shall not issue a permit in cases where the proposed demolition would contravene a law:
"8.(1) No person shall construct or demolish a building or cause a building to be constructed or demolished unless a permit has been issued therefor by the . 1992, c. 23, s. 8 (1); 1997, c. 30, Sched. B, s. 7 (1).
[...]
(2) The chief building official shall issue a permit under subsection (1) unless,
(a) the proposed building, construction or demolition will contravene this Act or the building code or any other applicable law;" [Our emphasis]
- Building Code Act, 1992, S.O., 1992, c. 23, s. 8.
29. The decisions taken by a municipal Corporation, pursuant to the broad discretionary powers conferred to it by the Ontario Heritage Act and the Building Code Act, 1992, must be justifiable in the public interest. In order to exercise those powers in conformity with the public interest, the respondents had to, at least, take into consideration, among other things, the unwritten principles of the Constitution and the fundamental values of our Canadian society.
2. Duty of the municipal Corporation to exercise its discretionary power in accordance with the constitutional principles and the fundamental values of our Canadian society.
30. vThe Supreme Court of Canada reminded us, in Reference re Secession of Quebec, that the principle of constitutionalism is based on the principle that the Constitution is the supreme source of law and that all government action must comply with its requirements:
Simply put, the constitutionalism principle requires that all government action comply with the Constitution.
- Reference re Secession of Quebec,[1998] 2 S.C.R. 217, at p. 258, cited in Lalonde v. Ontario (Commission de restructuration des services de santé) (1999), 48 O.R. (3d) 50 (Div. Ct.), at para. 46
31. It follows that government action must be measured against, inter alia, the fundamental organizing principles of the Constitution and the fundamental values of our Canadian society. As in the Montfort case, "the constitutional validity or invalidity of a piece of legislation is not at issue"but rather, what is at issue in this case " is whether certain conduct of a government agency falls within the parameters of what is permitted by the Constitution".
- Lalonde v. Ontario (Commission de restructuration des services de santé) (1999), 48 O.R. (3d) 50 (Div. Ct.) at para. 47 and Lalonde v. Ontario (Commission de restructuration des services de santé) (2001), 56 O.R. (3d) 577 (C.A.), at para. 124
32. The idea that a discretionary decision of the government administration may be reviewed on the basis of constitutional principles and the fundamental values of Canadian society draws support from the decision of the Supreme Court of Canada in Baker v. Canada (Minister of Citizenship and Immigration), in which L'Heureux-Dubé J. found that there were, nonetheless, significant judicially enforceable limits where fundamental constitutional and societal values are at stake:
[D]iscretion must...be exercised in a manner that is within a reasonable interpretation of the margin of manoeuvre contemplated by the legislature, in accordance with the principles of the rule of law (Roncarelli v. Duplessis, [1959] S.C.R. 121), in line with general principles of administrative law governing the exercise of discretion, and consistent with the Canadian Charter of Rights and Freedoms....
[T]hough discretionary decisions will generally be given considerable respect, that discretion must be exercised in accordance with the boundaries imposed in the statute, the principles of the rule of law, the principles of administrative law, the fundamental values of Canadian society, and the principles of the Charter.
- Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 at pp. 853 to 855, cited in Lalonde v. Ontario (Commission de restructuration des services de santé) (2001), 56 O.R. (3d) 577 (C.A.), at para. 177
33. In the Montfort case, the Court of Appeal wrote:
The present case does not involve a written constitutional guarantee, but it does involve a situation with profound implications for Ontario's minority francophone community that engages the constitutional principle of respect for and protection of minorities.
Fundamental constitutional values have normative legal force. Even if the text of the Constitution falls short of creating a specific constitutionally enforceable right, the values of the Constitution must be considered in assessing the validity or legality of actions taken by government. This is a long-established principle of our law. Before the advent of the Charter and the constitutional entrenchment of rights and freedoms, there can be no doubt that those same rights were fundamental constitutional values. Although they had not been crystallized in the form of entrenched and directly enforceable rights, they were regularly used by the courts to interpret legislation and to assess the legality of administrative action.
- Lalonde v. Ontario (Commission de restructuration des services de santé) (2001), 56 O.R. (3d) 577 (C.A.), at paras. 173 and 174
34. As in the Hôpital Montfort case, this honourable Court is called upon to "review the validity of a discretionary decision with respect to the role and function of an existing institution, made by a statutory authority with a mandate to act in the public interest".
- Lalonde v. Ontario (Commission de restructuration des services de santé) (2001), 56 O.R. (3d) 577 (C.A.), at para. 123
35. Municipalities, which are incorporated bodies, are bodies created by legislation and assigned the task of acting in the public interest. Like the other levels of government, they are not exempt from Canadian constitutional imperatives.
3. Unwritten constitutional principle of respect and protection of the Francophone minority and Canada's linguistic duality principle
36. We submit that the municipal Corporation, in exercising its discretionary powers, had to take into account (a) the principle of respect for and protection of the French-speaking minority in Ontario, and (b) linguistic duality, a fundamental principle of the Canadian society rooted in section 16(1) of the Charter.
- Lalonde v. Ontario (Commission de restructuration des services de santé) (2001), 56 O.R. (3d) 577 (C.A.), at para. 140
37. The principle of respect for and protection of minorities is a fundamental organizing characteristic of the Canadian Constitution that has powerful normative force and is binding on governments. That characteristic is not solely the product of the specific guarantees given to minorities but plays a vital role by helping to define the content and limits of the other structural characteristics of the Constitution. If discretionary decisions are found to have violated that principle, the reviewing Court may intervene to protect the minority against any government action that fails to adhere to that principle.
- Lalonde v. Ontario (Commission de restructuration des services de santé)` (2001), 56 O.R. (3d) 577 (C.A.), at paras. 114 and 176
38. The protection of linguistic minorities is essential to our country.
- Lalonde v. Ontario (Commission de restructuration des services de santé) (2001), 56 O.R. (3d) 577 (C.A.), at para. 112
39. However, as in the Montfort case, the "protection of minorities" argument is given more substance and strength in this case by the fact that the minority in question is a francophone minority. This minority's culture and language have a special place in the fabric of Canadian society, as one of the founding communities of Canada, and French is also one of the two official languages of Canada to which rights are guaranteed by the Constitution.
- Lalonde v. Ontario (Commission de restructuration des services de santé) (1999), 48 O.R. (3d) 50 (Div. Ct.), at para 43
40. Linguistic duality is a fundamental constitutional value which underlies linguistic rights guaranteed by section 133 of the Constitution Act, 1867, and sections 16 to 23 of the Canadian Charter of Rights and Freedoms. Professor Pierre Foucher wrote: " la dualité linguistique est une des dimensions prédominantes du principe de la protection des minorités et du constitutionnalisme canadien".
- P. Foucher, "La double dualité du Canada et ses conséquences juridiques", Essays in Honour of Gérald-A. Beaudoin: The Challenges of Constitutionalism, Les éditions Yvon Blais, 2002, ch. 8, at p. 198
41. According to the Supreme Court of Canada, "[l]inguistic duality has been a longstanding concern in our nation. Canada is a country with both French and English solidly embedded in its history", and "rights regarding the English and French languages ... are basic to the continued viability of the nation".
- Société des Acadiens v. Association of Parents, [1986] 1 S.C.R. 549 at p. 564 (per Dickson C.J.) and R. v. Mercure, [1988] 1 S.C.R. 234, at p. 269 (per La Forest J.), cited in Lalonde v. Ontario (Commission de restructuration des services de santé) (2001), 56 O.R. (3d) 577 (C.A.), at para. 112
42. Pronouncing itself on the object of the right conferred by section 23 of the Charter with respect to minority language educational rights, the Supreme Court of Canada restated the aim of this section "is to preserve and promote the two official languages of Canada, and their respective cultures, by ensuring that each language flourishes, as far as possible, in provinces where it is not spoken by the majority of the population." [Our emphasis]
- Mahe v. Alberta (1990) 1 S.C.R. 342, at p. 362
43. Officially sanctioned in the first part of s.16(1) which states that "English and French are the official languages of Canada", the principle of linguistic duality entails two consequences, namely the equality of status in the application of those rights and the advancement towards linguistic equality as expressed in s.16(3).
- P. Foucher, "La double dualité du Canada et ses conséquences juridiques", Essays in Honour of Gérald-A. Beaudoin: The Challenges of Constitutionalism, Les éditions Yvon Blais, 2002, ch. 8, at p. 180
44. As the principle of linguistic duality sanctioned in s. 16(1) can serve as a basis for specific obligations on the part of the government (in education, for example) we submit that, simarly to the principle of protection of linguistic minorities, the principle of advancement towards linguistic equality plays an important role in assessing governmental actions when those actions have a negative impact on the preservation of the two official languages of Canada and the enhancement of their minority communities.
45. Here, language is not only a tool of communication but also an essential ingredient in the existence, the development, and the human dignity of any individual. The French language is the key cultural component of the Franco-Ontarian community.
- Lalonde v. Ontario (Commission de restructuration des services de santé) (1999), 48 O.R. (3d) 50 (Div. Ct.), at para.17
46. Moreover, the historic contribution of francophone cultural heritage in Ontario is recognized in the province's legislative scheme. For example, the preamble to the French Language Services Act refers to that recognition, and to the intention of the Legislative Assembly to preserve that cultural heritage for future generations:
Whereas the French language is an historic and honoured language in Ontario and recognized by the Constitution as an official language in Canada; and whereas in Ontario the French language is recognized as an official language in the courts and in education; and whereas the Legislative Assembly recognizes the contribution of the cultural heritage of the French speaking population and wishes to preserve it for future generations; and whereas it is desirable to guarantee the use of the French language in institutions of the Legislature and the Government of Ontario, as provided in this Act; ...
- French Language Services Act, R.S.O. 1990, c. F-32; Lalonde v. Ontario (Commission de restructuration des services de santé) (2001), 56 O.R. (3d) 577 (C.A.), at para. 145
47. Accordingly, in considering the applicants' request for designation pursuant to the Ontario Heritage Act, the municipal Corporation had to take into account the purpose of the Act, the constitutional principle of protection of linguistic minorities, the principle of linguistic duality and its corollary, the principle of equal advancement of French and English, without forgetting the institutional role of St-Joachim Church for the vitality of the minority community of St-Joachim and the impact of its decisions on the latter.
48. For the Franco-Ontarian community, institutions are important symbols. They express the group's identity, the French presence in Ontario and in Canada, the French fact in public life, and the strength and vitality of the community.
- Lalonde v. Ontario (Commission de restructuration des services de santé) (1999), 48 O.R. (3d) 50 (Div. Ct.), at para. 15
49. Institutions are the linguistic and cultural loci that provide individuals with the means to affirm and express their cultural identity and that, by extension, enable them to reaffirm their cultural membership in a community. Accordingly, those institutions must exist in the broadest possible spectrum of spheres of social activity to enable the minority community to develop and maintain its vitality.
- Lalonde v. Ontario (Commission de restructuration des services de santé) (1999), 48 O.R. (3d) 50 (Div. Ct.), at para.14
50. Because of the important role of institutions for the Franco-Ontarian community, those institutions may enjoy constitutional protection against government action. In the Hôpital Montfort case, the Court wrote:
There exists, ever since Confederation, a constitutional imperative to protect and maintain the rights of the francophone minority - including, in our view, the right to have at least the minimal necessary institutions to maintain and foster the existence and the vitality of their language and their culture.
- Lalonde v. Ontario (Commission de restructuration des services de santé) (1999), 48 O.R. (3d) 50 (Div. Ct.), at para. 81
51. vThe Supreme Court of Canada confirmed the existence of this protection when it stated that the Constitution may "seek to ensure that vulnerable minority groups are endowed with the institutions and rights necessary to maintain and promote their identities against the assimilative pressures of the majority".
- Reference re Secession of Quebec, [1998] 2 S.C.R. 217, at p. 259, cited in Lalonde v. Ontario (Commission de restructuration des services de santé) (2001), 56 O.R. (3d) 577 (C.A.), at para. 110.
52. The courts have recognized that schools and a hospital are institutions that may play an important community role, in terms of "the promotion and preservation of minority language culture" and of "maintaining the French language, transmitting francophone culture, and fostering solidarity in the Franco-Ontarian minority".
- Mahe v. Alberta, [1990] 1 S.C.R. 342, at p. 363; Lalonde v. Ontario (Commission de restructuration des services de santé) (2001), 56 O.R. (3d) 577 (C.A.), at para. 71
53. A church, like St. Joachim Church, may also be one of the essential institutions for the community around it:
[TRANSLATION] Community institutions in general, and churches in particular, have great symbolic value for Franco-Ontarians. ... Churches are also important symbols, because in addition to their religious aspect, they often have a historic and community aspect, and this gives them a very intense meaning for the members of the community. [Our emphasis]
- Affidavit of Raymond Breton, sworn on November 7, at paras. 12 and 13
54. We submit that St. Joachim Church plays such a role since it embodies the identity and culture of this community. Its importance derives from the fact that it is a vehicle for historic and cultural content. Because of that, St. Joachim Church has a meaning for those who are involved with it not only for its practical function, but also for the affirmation and expression of their cultural identity. It is a focus of identification for the members of the community.
- Supplementary affidavit of David Tremblay, sworn on November 26, 2002, at para. 63; Affidavit of Raymond Breton, sworn on November 7, at para. 9
55. For the members of the Franco-Ontarian community in St. Joachim and the surrounding area, St. Joachim Church represents much more than just a church; in it, they see their past and the heritage they will bequeath to future generations: an institution built by the community surrounding it, from its foundation to the stained glass windows signed by its donors, including the very wood used to build its pews; a church which has been a community meeting place for more than a century; a symbol of the vitality and the development of the Francophone community of St. Joachim. St. Joachim Church personifies the tenacity, courage and dedication of their ancestors, who settled in the region and built the Franco-Ontarian community.
[TRANSLATION] They built us a church that attests to their pride, their sacrifices, their talent and their faith. That church has survived, as they did, from one season to the next, from one crisis to the next, and from one joyful event to the next. It is our victories, our defeats and our accomplishments that have shaped the community of which I am a part.
- Supplementary affidavit of David Tremblay, sworn on November 26, 2002, at para. 52
56. Tenacity, courage and dedication are characteristics that define the Franco-Ontarian community, and even more particularly the Franco-Ontarian community of southwestern Ontario, because the struggle against the assimilative pressures of the majority is part of its history.
[TRANSLATION] For long decades from the end of the nineteenth century to the mid-twentieth century, Franco-Ontarians in southwestern Ontario, and in St. Joachim in particular, together with the rest of French Ontario, had to wage a long and difficult struggle for their Catholic faith and its French-Canadian incarnation. The parish church was often the rallying point for those people, because, for all practical purposes, the parish church was the only place that belonged to the French-Canadian Catholic community where it was.
- Affidavit of Robert Choquette, sworn on October 31, 2002, at para. 4
57. For David Tremblay, those churches embody the difficult reality of the past that the francophone community has survived and symbolize the right to live in French:
[TRANSLATION] Earlier generations defended our rights and fought to secure our right to survive as a francophone community. It is because of their efforts that, today, I can live, work, play and pray in my first language, French. And many of us make the effort to enjoy these hard-earned rights. It is not easy to find symbols in this area that reflect our own reality. The churches in our village are part of these francophone symbols, because they are identified with the francophone community. We must therefore protect them.
- Supplementary affidavit of David Tremblay, sworn on November 26, 2002, at paras. 54 and 55
58. According to the historian Robert Choquette, the symbolism derives from the fact that [TRANSLATION] "The church is the repository of a people's collective memory, and thus of its identity". David Tremblay illustrates this when he says that the church gives concrete expression to his pride in his francophone identity:
[TRANSLATION] The church in my village is part of who I am as a francophone. I do not want to have to reinvent myself as a francophone without roots. I am a member of a community of proud individuals. My predecessors, who had very little, worked hard to build me a monument. I do not want to be part of the generation that was unable, despite all of the resources available to it, to repair it in order to conserve this important part of their heritage.
- Affidavit of Robert Choquette, sworn on October 31, 2002, at para. 5; Supplementary affidavit of David Tremblay, sworn on November 26, 2002, at para. 63
59. The disappearance of St. Joachim Church could have a demobilizing effect on the members of the community. As Prof. Raymond Breton, a sociologist, put it, [TRANSLATION] "society, through some of its institutional authorities, will have said that the vitality of the francophone community is not really very important".
- Affidavit of Raymond Breton, sworn on November 7, 2002, at para. 16
60. The consequences of the demolition of St. Joachim Church extend far beyond the loss of a church as a place of worship:
[TRANSLATION] [T]he disappearance of St. Joachim Church will weaken the institutional matrix of the community. As well, an event of that kind will have an effect on how francophones see their community. They will probably see this as an indication that society places little weight on the existence and vitality of that community. The result is that the opportunity to become a part of the community is reduced, and this will eventually sap people's motivation to become a part of it and participate actively in it. Where that occurs, there will be a corresponding reduction in cultural diversity, which is regarded as one of the distinctive characteristics of our society, at the societal level.
- Affidavit of Raymond Breton, sworn on November 7, at para. 18
61. For the applicants, this is not a mere possibility; rather, it is a reality.
[TRANSLATION] The first step toward the assimilation of a community is taken when you forget your history; it is followed by indifference toward your community, and it ends when your culture is replaced by another culture. To me, that is the journey we are embarking on in southwestern Ontario, if we allow St. Joachim Church, and later the church in Pointe-aux-Roches, to be demolished.
- Supplementary affidavit of David Tremblay, sworn on November 26, 2002, at para. 66
62. In Prof. Choquette's view, [TRANSLATION] "This church has proved its worth as a special place and as a symbol of the Franco-Ontarian Catholic community in that area".
- Affidavit of Robert Choquette, sworn on October 31, 2002, at para. 5
PART V - RELIEF SOUGHT
63. A declaration that, in exercising their discretion, the respondents were required, in accordance with the fundamental principles of the Constitution, to take into account the cultural and linguistic importance of St. Joachim Church to the Franco-Ontarian community.
64. Such further and other order as this Honourable Court may deem just and appropriate.
This factum is respectfully submitted this 4th day of December 2002.
Office of the Commissioner of Official
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