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Why won’t Irwin Cotler Respond? Pourquoi Irwin Cotler ne Répond pas ? |
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Friday, July 28, 2006—Sent Registered Mail
4770 Kent Avenue, Suite 316 Montreal, Quebec H3W 1H2
Tel: 514-283-0171 Fax: 514-283-2407
Honourable Irwin Cotler,
As the former justice minister and current member of parliament, we would like to draw your attention to a very serious matter in your Constituency of Mount Royal.
We are the members of the Coordinating Committee the decision making body for the Côte-des-Neiges/Notre-Dame-de-Grâce Resident’s Association. Our mission statement is “to improve the quality of life for the residents of CDN-NDG through action and participation”.
As you probably know through reports in the local and city press, Alexander Montagano the former president of the Association, was fined 22 times by city inspectors for the constitutional right to post notices in March 2005. We have evidence that clearly demonstrates that Alexander Montagano was specifically targeted by city inspectors.
As an ardent defender of fundamental rights and freedoms enshrined in many countries’ constitutions and in international law, we are confident that you share our view that these fines are both a violation of these priniciples and an abuse of power.
As you know the Canadian Charter of Rights and Freedoms, Section 2 (b) clearly states that “Everyone has the following fundamental freedoms; (b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication” In addition, the Supreme Court of Canada ruled directly on the matter in Ramsden V. Peterborough (City), [1993] 2 S.C.R. 1084, 1993 CanLII 60 (S.C.C) where it stated that “Postering on public property, including utility poles, clearly fosters political and social decision-making and thereby furthers at least one of the values underlying s. 2 (b).”
Michael Bergman, another prominent human rights lawyer like yourself, stated that “For the borough[CDN-NDG] to restrict posters, there has to be a very good municipal reason to do that. Its one thing to regulate posters, it’s another thing to ban them…Posters should not be banned simply because they may create garbage. A way to control garbage is to have regulations about garbage.” 1 This follows the Supreme Court of Canada judgment of the case cited above that states “The complete ban on postering, however, did not restrict expression as little as is reasonably possible. The by-law extended to trees, all types of poles, and other public propoerty”
The City of Montreal by-law Concerning Cleanliness and Protection of Public Property and Street Funiture (RBCM, c. P-12.2) effectively bans all postering.
We quote you directly that “liberty in freedom of expression is little less vital to man than breathing is to his physical existence,” and that “it is difficult to imagine a guaranteed right more important to a democratic society than freedom of expression.”2
We formally ask you to intervene to protect our constitutional rights and end this obnoxious harrassment. We hope that you break your silence and demonstrate leadership and courage to defend those freedoms for which you have so dutyfully dedicated your life to.
Sincerely,
The Coordinating Committee of the CDN-NDG Residents Association
1 Diodora Bucur, The Suburban; Lawyers slam poster ban, 2005-08-31. 2 Irwin Cotler. (2006, June 28). In Wikipedia, The Free Encyclopedia. Retrieved 01:07, July 4, 2006, from http://en.wikipedia.org/w/index.php?title=Irwin_Cotler&oldid=60951703. |
C A N A D APROVINCE OF QUÉBEC M U N I C I P A L C O U R TDISTRICT OF MONTRÉAL ______________________________
No. 996-049-367; 996-049-821; 996-049-813; 996-049-847; 996-049-839; 996-049-854; 996-049-862; 996-049-870; 996-049-888; 996-049-896; 996-049-904; 996-049-235; 996-049-243; 996-049-250; 996-049-268; 996-049-276; 996-049-284; 996-049-300; 996-049-318; 996-049-326; 996-049-334; 996-049-342
VILLE DE MONTREAL
Complainant -v-
ALEX MONTAGNANO
Defendant ______________________________
NOTICE OF CONSTITUTIONAL QUESTION
The defendant intends to question the constitutional validity and/or applicability of the City of Montreal By-law Concerning Cleanliness and Protection of Public Property and Street Furniture (RBCM, c. P-12.2) and in particular, but without limiting the generality of the foregoing sections 20 and 21 thereof in an action to be heard on November 17, 2006 at 9:30 a.m. at the Montreal Municipal Courthouse situated at 775 Gosford, Montreal, Quebec.
The following are the material facts giving rise to the constitutional question:
The infractions charged are related to the posting of signs by the Côte-des-Neiges Residents' Association announcing a public meeting. The defendant will argue that the by-law is void for vagueness and that the prosecution is an abuse of power by municipal officials who have specifically targeted him for prosecution due to the views he has expressed.
The following is the legal basis for the constitutional question:
The prosecution of the defendant is an abuse of process and sections 20 and 21 of the aforementioned by-law violate the defendant’s rights pursuant to sections 2 and 7 of the Canadian Charter of Rights and Freedoms.
The defendant will argue that the law is constitutionally invalid for the following reasons:
Article 21 (6) States: “No person may stick, nail or staple anything onto street furniture;”
Article 21 (6) establishes a total prohibition, including in the expression “anything” a message or a poster;
Total prohibition is reinforced by article 20 which is read as follows:
“No person may use street furniture for a purpose other than the one for which it is intended, damage it or alter it in any way.”;
Article 21 makes reference to the Urban Planning By-Law that provides a legal vehicle for the applying posters and a message. Where it states:
“Paragraph 6 of the first paragraph does not apply to a message or a poster referred to in article 564 of the Urban Planning By-law (chapter U-1)”;
Article 564 of the Urban Planning By-law (chapter U-1) was integrated and adopted in all of the Urban Planning By-laws of the City of Montreal the 17th of December 2001;
In the Urban Planning By-law of the borough of Côte-des-Neiges – Notre-Dame-de-Grâce (01-276/95) hereafter referred to as 01-276/95. Article 564 of the Urban Planning By-law (chapter U-1) is now found under article 527 of 01-276/95;
Article 527 reads as follows:
“A temporary advertising poster may be put up without limit on a poster display module specifically used for that purpose by the city.”;
Article 527 of 01-276/95 is re-enforced by Article 425 of 01-276/95 which comes from Article 469 of the Urban Planning By-law (chapter U-1), which states:
“No message may be written and no sign may be glued or stapled elsewhere than on a surface provided for that purpose.”;
Article 469 of the Urban Planning By-law (chapter U-1) was integrated and adopted in all of the Urban Planning By-laws of the City of Montreal the 17th of December 2001;
In the place of recognizing a basic right balanced with restrictions identifying sites protected from free and at no cost postering, the By-Law establishes a total prohibition with the exception and provision: The “poster display module” (modules d’affichage libre);
There are no poster display modules (modules d’affichage libre) in the borough of Cote-des-Neiges-Notre-Dame-de-Grace;
There are no By-Laws that obligate the City of Montreal to install poster modules. In addition, there are no descriptions, norms and dimensions concerning the installation of poster display modules on public property in the City of Montreal which renders this exception and provision illusory;
Abandon and the non-replacement by the City of Montreal of the pilot project “babillards communautaires” has resulted in the absence of poster display modules specifically designed for this purpose by the City of Montreal and has rendered this exception and provision totally and completely illusory;
The By-Law creates an illusory right that can not be exercised and in fact prohibits in total the free application at no cost of posters on public property;
At the same time that the pilot project “babillards communautaires” declined just to its abandon, the installation of “S.O.T.I.P.” (Structure destiné à l’Orientation Touristique et à l’Information Publique) continues to rise in number on public property of the City of Montreal;
Postering on construction site fences (palisades) that are on private property is an illusory right in the By-Law and in fact;
Postering on public property is a form of expression protected by the Canadian Charter of Rights and Freedoms, Section 2 (b) clearly states that “Everyone has the following fundamental freedoms; (b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication”;
In addition, the Supreme Court of Canada ruled directly on the matter in Ramsden V. Peterborough (City), [1993] 2 S.C.R. 1084, 1993 CanLII 60 (S.C.C) where it stated that “Postering on public property, including utility poles, clearly fosters political and social decision-making and thereby furthers at least one of the values underlying s. 2 (b).”;
The Supreme Court of Canada judgment of the case cited above also states “The complete ban on postering, however, did not restrict expression as little as is reasonably possible. The by-law extended to trees, all types of poles, and other public property”;
Article 21(6) also violates article 7, Legal Rights, of the Canadian Charter of Rights and Freedoms where it states that “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”;
Article 21 (6) does not pass the test of the proportionality; because it does not impair the Charter right as little as possible and infringement of this right outweighs the legislative objective;
For All These Reasons, Article 21(6) and by extension Article 20 should be declared constitutionally inapplicable, invalid and inoperable
Montreal, October 21st, 2006
ALEXANDRE MONTAGNANO
TO:
The Attorney General of Quebec 1, rue Notre-Dame Est Bureau 4.100 Montréal (Québec)
The Attorney General of Canada
Attorney in the file Prosecutor’s Office 775 Gosford Montreal, Quebec H2Y 3B9 |
