Even before Bill 96 was passed earlier this week, changing the scope of Quebec’s language laws, some local lawyers said they were working out a plan to challenge it.
Two days later they were joined by the English School Board of Montreal, which said it would launch a legal fight against the bill.
But what exactly will the bill attack? The EMSB has so far not specified, it has only said that it believes that the bill compromises its right to provide an education system as it decides to do.
And the group of lawyers, whose spokesman so far has been constitutional lawyer Julius Gray, has not yet set out its full legal logic: they are still working on it and will not rush it, Gray says.
However, there are some parts of the bill that Gray says are more obvious for a challenge, for different reasons. Here are three of them.
1: The bill would make citizens pay to get some legal documents translated into French.
The basic rights of Canadians in the justice system cannot be undone by using the clause however, Gray said in an interview this week.
The Legault government used this clause to pass the bill, protecting it preventively from the challenges of the charter, but this will not protect any part of the bill that compromises people’s access to justice, in particular, says Gray, the notion that people can be made to pay for court translations, as required by the bill for certain documents.
“What is literally more unconstitutional is the rule that an English procedure must be accompanied by a French translation,” he said.
“In other words, put a price, on your own,” using the justice system, he says.
“It’s like saying you have freedom of speech, but you have to pay the government $ 20 every time you use it.”
No translation can be used in court. It’s expensive to get an official translation, Gray said. The Quebec legal translators’ association could not be reached on Friday to explain the breakdown of costs.
It also takes time to order and produce translations, he added.
“If you are on the last day before [a court] prescription, then it may not be feasible: you may lose your case because you did not have time to do the translation, “he said.
Aside from the constitutional rights of people around justice, there were also two Supreme Court decisions, known as Blaikie 1 and Blaikie 2, that specifically analyzed Quebec’s obligation to provide a bilingual justice system. The translation rule is against Blaikie 2, Gray said.
For him, it is also a solution to a problem that does not exist: the bilingual justice system of the province works well, with the collaboration and goodwill of all.
“There’s a lot wrong with the justice system, basically, in terms of the level of accessibility – it’s not accessible, it’s too expensive, and so on,” Gray said.
“But not in terms of bilingualism: bilingualism is fine.”
In criminal cases, the defendant has the right to have the case heard in English or French. If someone testifies in another language, it translates, but “in general, what you find in the justice system is that it works,” he said.
“The lawyers and the judge help if one of the parties has not understood something or whatever. It is rare. I’ve never seen any difficulty with the language part. “
2: Quebec language surveillance can look for law firms and notaries
The Office québécois de la langue française or OQLF, as it is known in this office, controls the use of French by Quebecers in workplaces and in public settings, such as signage.
Its powers are extended to Act 96, but there are still some things that are probably sacrosanct beyond the shield provided by the clause nonetheless, Gray said.
The OQLF “receives more power … than the police have to investigate murders,” he said, and more powers than they would have under the Emergency Measures Act.
“Obviously speaking English is no worse than murder,” he said, but in a couple of particular cases, a court can quickly agree that the law has been passed.
The OQLF may search for and confiscate documents from private, commercial, and public offices under the “government administration” label, but some of these offices have their own rights against this type of search.
“When it comes to seizures and searches of law firms and notaries, the Supreme Court has held that the privilege between the lawyer and the client is a fundamental principle of justice, not in the Charter, but in the constitution “, he said.
“Therefore, they may not be able to allow the police to search for the files of notaries or lawyers.
And, he added, “I don’t think they can even afford to look for doctors’ files,” even though this is a question that has been left legally more open in Canada; it may be time for a new trial on the matter. , said Gray.
In the health care system, of course, “there are very serious sanctions” for violating patient privacy, he said, “if you work in a hospital, for example, and check someone’s record, you have nothing to look forward to. non-medical reasons. ”
3: The bill creates a long-term divide between “historical” and “other” English speakers
“I had never seen him in Canada,” Gray said.
The idea of permanently separating two groups in this type of two-tier system for a variety of everyday purposes, not just in terms of who qualifies for English education, is new and requires a legal challenge, he said.
Under the bill, new immigrants to Quebec could only use English in all kinds of skills for six months, after which they would have to use French, for example.
But “historic” English speakers – those who have the right to attend school in English – would not be subject to the same provisions, it seems. It is unknown at this time what he will do after leaving the post.
In Canadian history, this type of grouping by law is almost unheard of, Gray said. Sometimes there have been certain jobs reserved only for citizens, but that idea was “largely invalidated by the Charter,” he said.
The only other example is Indian status, which has its own long roots.
“But in general, our tradition is not to create groups, different groups, based on inheritance,” Gray said.
He added that “normal democratic countries do not classify populations.”
When will Quebeckers know more about legal challenges and how they take shape? It could take some time, as Gray and the committee of other lawyers he works with, the rest of whom have not been identified, would rather do it right than do it quickly, he said.
Earlier this week, he said they intend to take the matter to the United Nations, as he did with a previous language law in the early 1990s, if Canadian courts are tied hand in hand because of the clause however.