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The new language law “has the potential to fundamentally change the constitutional order in Quebec: it puts French above fundamental rights and freedoms.”
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June 9, 2022 • 1 day ago • 9 minutes reading • 71 comments People gather at Dawson College for a demonstration to oppose Act 96 in Montreal on Saturday, May 14, 2022. John Mahoney / Montreal Gazette
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See you in court.
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Opponents are expected to file various legal challenges against Law 96, the controversial and comprehensive legislation passed in May that could affect many aspects of daily life, from medical care to how businesses and the system work. judicial.
The law further restricts the use of English in Quebec in order to promote the French language, with Prime Minister François Legault arguing that French is declining in Quebec, both in the workplace and at home.
A Montreal English School Board (EMSB) lawsuit filed last week is the first attempt to overturn parts of the law.
The Montreal Gazette spoke with legal experts and people working on possible legal action.
Legal issues
The 201 articles of Act 96 distributed over 100 pages include the most important changes to Quebec’s language rules since the advent of Act 101, the French Language Charter, in 1977.
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“Bill 96 does so many things and has the potential to fundamentally change the constitutional order in Quebec: it puts French above fundamental rights and freedoms,” said Robert Leckey, dean of the university’s law school. McGill.
“It gives potentially extraordinary powers to the civil administration through the Office québécois de la langue française (OQLF). (The law) potentially interferes quite deeply with our understanding of the separation of powers and the constitutional order of the province. “
Julius Gray, a prominent human rights lawyer who has spoken out against the law, said he is in discussions with “three or four groups” who consider it legal challenges.
He has promised to take the fight to the Supreme Court and the United Nations. Indigenous groups are also expected to join the legal battle.
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Here are some of the ways opponents are exploring:
Notwithstanding the clause
The Canadian Charter of Rights and Freedoms “is there to protect the unpopular, the weak and minority views and the minority positions,” Gray said. “Majority officials do not need a letter because they have a majority in parliament.”
However, governments can override some fundamental rights of the charter by invoking its clause nonetheless.
The government of the Legault Avenir Québec Coalition preemptively invoked this clause to protect Bill 96.
But the clause nevertheless only covers some sections of the new law.
For example, the letter states that “everyone has the right to be safe from unjustified search or seizure.” But this section may be revoked by the clause nonetheless. This allowed Quebec to include in Act 96 a provision granting the search and confiscation powers of the OQLF without the need for an order to inspect companies and ensure that they comply with the law.
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However, other parts of Bill 96 are not protected by the harmless clause.
Some legal experts say Legault’s decision to use the clause as a precaution goes against the spirit of the letter. This problem arose in the challenge to the CAQ Bill 21, which bans people wearing religious symbols such as the Muslim hijab from some government jobs. Bill 21 is still going through the courts and should reach the Supreme Court, which is expected to intervene on the issue of preventive use of the clause. This means that the Supreme Court of Canada could rule long before Bill 96 reaches this stage.
Federal Justice Minister David Lametti recently argued that the clause, however, was never intended to be used as a precaution. He said Ottawa can intervene in any legal challenge against Bill 96 when it reaches the Supreme Court.
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Opponents could also argue that the courts have the power to declare as a law protected by the clause however it violates rights, Leckey said.
“Right now, a general view is that the courts cannot even examine the issues in the letter while the notoriety clause is in place,” he said. “One possibility is that the court may state how the law affects rights, even if the law is applicable. That would mean the public would at least have a better idea of what their elected leaders were doing on their behalf.”
Leckey said that “Legault’s approach, which uses a broad and comprehensive clause, albeit on a precautionary basis, is trying, in a sense, to make sure that the public never knows the impact of the law on fundamental rights.” .
The courts
Opponents point to sections of Bill 96 that deal with the legal system, arguing that they violate section 133 of the Constitution Act, 1867, which guarantees the right to use the courts in English or French.
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According to Bill 96, court statements must be in French or accompanied by a translation. In most cases, judges do not have to be competent in any language other than French. Any trial in English must be accompanied immediately by a translation into French.
Leckey said a challenge could focus on “how the law interferes with the bilingual functioning of the courts.” The obligation of a legal person litigating to provide a French translation of judgments may offend the constitutional rights to use English and French in court.
Opponents may argue that changes in the appointment process could affect the appointment of bilingual judges, thereby undermining the constitutional guarantee of courts operating in English and French, Leckey said. Some might argue that the law violates the constitutional principle of judicial independence, he added.
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Eric Maldoff, a lawyer who has served as the federal government’s constitutional adviser, said Bill 96 “creates a lot of bureaucratic, administrative and other costs and impediments to being able to use English in court.”
Indigenous rights
Indigenous leaders may fight law 96 in the courts, arguing that the law will weaken indigenous languages and that the imposition of more French courses for CEGEP students will affect the success rates of indigenous youth.
Kahnawake’s big boss, Kahsennenhawe Sky-Deer, has said the law is a “cultural genocide” and an attempt to “get our future out of our hands”. Ghislain Picard, head of the Quebec-Labrador First Nations Assembly, accused Legault of imposing “significant linguistic injustices … in the name of narrow, divisive nationalism.”
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The next steps are being weighed as Kahnawake Mohawk Council consults with community members on possible political and legal action, Chief Mike Delisle said in an interview. Options include joining non-indigenous demands; to challenge the law based on Article 35 of the Constitution Act of 1982, which affirms the rights of indigenous peoples; and bring the issue to the United Nations. More protests in Kahnawake are possible, following recent demonstrations that disrupted traffic on the Mercier Bridge and Route 132.
Kahnawake has suspended all “political, administrative and technical talks” with the Quebec government over the law, Delisle said. The community wants a meeting between Sky-Deer and Legault to discuss “accommodations” of the law.
“We don’t understand the reason” behind Act 96, Delisle added. “There are more than 7 million francophones in Quebec. How is (the French language) in danger? ”
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Modification of the constitution
Bill 96 seeks to change part of the Canadian Constitution to state that Quebec is a nation and that its official language is French.
In its lawsuit, the EMSB claims that Quebec has no jurisdiction to unilaterally amend the constitution.
“Regardless of anyone’s feelings on these points, legally and constitutionally, Quebec cannot unilaterally amend the Canadian Constitution,” Joe Ortona, a lawyer who chairs the EMSB, said in an interview.
Education
The EMSB says Bill 96 violates Section 23 of the Charter, which covers rights to minority language education and cannot be overturned by the clause however.
In its lawsuit, the EMSB said the charter guarantees the exclusive right to “management and control by representatives elected by the minority language community over aspects of minority language education.”
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Ortona said Bill 96 “the obligation for an English school board to communicate in French and to work in French with other English school boards and to work in French between us and in our communications beyond our management and control …