Even before Bill 96 was passed earlier this week, changing the scope of Quebec’s language laws, some local lawyers have said they are drawing up a plan to challenge it.
Two days later, they were joined by the English School Board in Montreal, which said it would begin a legal battle against the bill.
But what exactly in the bill will attack? The EMSB has not yet clarified, but says it believes the bill compromises its right to provide an education system, as it has decided to do.
And the group of lawyers, whose spokesman so far has been constitutional lawyer Julius Gray, has yet to set out its full legal logic – they are still working on it and will not rush, Gray said.
However, there are several parts of the bill that Gray says are clearly ready to challenge for a variety of reasons. Here are three of them.
1: The bill will make citizens pay to receive some legal documents translated into French.
The fundamental rights of Canadians in the judiciary cannot be revoked by using the independence clause, Gray said in an interview this week.
The Lego government is using this clause to pass the bill, protecting it preventively from charter challenges, but it will not protect any part of the bill that compromises people’s access to justice – especially, says Gray, the idea that people can be payment of court transfers, as required by the bill for certain documents.
“The thing that is most literally unconstitutional is the rule that you have to accompany the procedure in English with a French translation,” he said.
“In other words, you are setting the price – at your own expense” for using the judiciary, he said.
“It’s like saying you have freedom of expression, but you have to pay the government $ 20 every time you use it.”
Not every translation can be used in court. It’s expensive to get an official translation, Gray said. We were unable to contact the Quebec Legal Translators Association on Friday to explain the cost breakdown.
It also takes time to order and make 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.
In addition to people’s constitutional rights to justice, there were two Supreme Court decisions known as Blaikie 1 and Blaikie 2, which specifically addressed Quebec’s obligation to provide a bilingual judiciary. The translation rule contradicts Blaikie 2, Gray said.
For him, this is also a solution to a problem that does not exist – the bilingual judicial system of the province works well, with the cooperation and good will of all.
“There are an awful lot of things that go wrong with the justice system, mainly in terms of the level of accessibility – it’s not affordable, it’s too expensive, and so on,” Gray said.
“But not for bilingualism – bilingualism is good.”
In criminal cases, the accused has the right to have the case heard in English or French. If someone testifies in another language, it is translated, but “in general, what you find in the justice system is that it just works,” he said.
“Lawyers and a judge help if one of the parties has not understood something or anything. It is rare. I have never seen any difficulties with the language side.”
2: The Quebec Language Service may search law firms and notaries
The Office québécois de la langue française, or OQLF, as this office is known, is what monitors Quebec’s use of French in the workplace and in public places, such as signs.
His powers have been expanded in Bill 96, but there are still some things that are probably sacred beyond the shield he provides for despite the clause, Gray said.
The OQLF has “greater powers … than the police have in investigating murders,” he said, and greater powers than they would receive under the Emergency Measures Act.
“Obviously, speaking English is no worse than murder,” he said, but in a few specific cases, the court could quickly agree that the law has been exceeded.
OQLF can search for and seize documents from private, commercial and public offices that fall under the label “government administration” – but some of these services have their own rights against this type of search.
“When it comes to confiscations and searches in law firms and notaries, the Supreme Court has ruled that the privilege between a lawyer and a client is a fundamental principle of justice – not in the Charter, but in the constitution,” he said.
“So they may not be able to allow the police to search the files of notaries or lawyers.
He added: “I don’t think they can even allow them to search doctors’ files,” although this is an issue that has been left more open in Canada – maybe it’s time for a new solution, Gray said.
In the health care system, of course, “there are very serious penalties” for violating patient privacy, he said, “if you work in a hospital, for example, and look in someone’s file that you don’t have a job to look for for non-medical reasons.”
3: The bill creates a long-term divide between “historical” and “other” English speakers
“I haven’t seen this in Canada before,” Gray said.
The idea of permanently splitting two groups into this kind of two-tier system for different daily purposes – not just in terms of who qualifies for English language training – is new and requires a legal challenge, he said.
Under the bill, new immigrants in Quebec will be allowed to use English in any form for six months, after which they will have to use French, for example.
But “historic” English speakers – those who have the right to attend English school – do not seem to be subject to the same regulations. It is unclear how the system will actually work.
In Canada’s history, this type of grouping is almost unheard of by law, Gray said. Sometimes there were certain jobs reserved only for citizens, but this idea is “largely invalidated by the Charter,” he said.
The only other example is Indian status, which has its own long roots.
“But in general, it’s not our tradition to create groups, separate groups based on heredity,” Gray said.
He added that “normal democracies do not categorize the population.”
When will Quebecers know more about the legal challenges and the form they are taking? It may take some time, as Gray and the panel of other attorneys he works with – the rest of whom have not been identified – would rather do well than quickly, he said.
Earlier this week, he said he intended to take the matter to the United Nations, as he had done with an earlier language law in the early 1990s if Canadian courts were tied because of the independence clause.
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