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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 09, 2022 • 1 day ago • 9 minutes reading • 71 comments People gather at Dawson College for a rally against Bill 96 in Montreal on Saturday, May 14, 2022 Photo by John Mahoney / Montreal Gazette
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I will see you in court.
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Opponents are expected to file several legal complaints against Bill 96, a controversial, comprehensive piece of legislation passed in May that could affect many aspects of daily life, from health care to the way businesses operate to the judiciary.
The law further restricts the use of English in Quebec in an attempt to strengthen French, with Prime Minister Francois Lego claiming that French is in decline in Quebec, both in the workplace and at home.
The case of the English School Board in Montreal (EMSB), filed last week, is the first attempt to repeal parts of the law.
Montreal Gazette talks to legal experts and people working on possible legal actions.
Legal issues
Packed in 201 articles of Bill 96, spread over 100 pages, are the biggest changes in the language rules of Quebec since the appearance of Bill 101, the Charter of the French Language, 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 Lekey, dean of McGill University’s law school.
“It gives the civil administration, through the Office québécois de la langue française (OQLF), potentially extraordinary powers. (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 was in discussions with “three or four groups” considering legal challenges.
He promised to take the battle to the Supreme Court and the United Nations. Local groups are also expected to join the battle.
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Here are some of the ways opponents are exploring:
Regardless of the clause
The Canadian Charter of Rights and Freedoms “is there to protect the unpopular, weak and minority views and positions of minorities,” Gray said. “Majority positions do not need a charter because they have a majority in parliament.
However, governments can repeal some fundamental rights in the charter by invoking its independence clause.
The coalition government of Legault Avenir Québec used this clause as a precaution to defend the bill 96.
But the independence clause covers only some sections of the new law.
For example, the charter states that “everyone has the right to protection against unreasonable search or seizure”. But this section can be repealed by the independence clause. This allowed Quebec to include in Bill 96 a provision giving OQLF search and seizure powers without the need for a business inspection order and ensuring compliance with the law.
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However, other parts of Bill 96 are not protected by the independence clause.
Some legal experts say Lego’s decision to use the clause preventively runs counter to the spirit of the charter. This issue arose in the challenge to CAQ Bill 21, which bans people who wear religious symbols such as the Muslim hijab from certain government positions. Bill 21 is still in the courts and is due to go to the Supreme Court, which is expected to address the issue of preventive use of the clause. This means that the Supreme Court of Canada can rule long before Bill 96 reaches this stage.
Federal Justice Minister David Lametti recently said the independence clause was never intended to be used preventively. He said Ottawa could intervene in any lawsuit against Bill 96 when it reaches the Supreme Court.
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Opponents could also argue that courts have the power to declare that a law protected by the independence clause violates rights, Leki said.
“It is now widely believed that the courts cannot even deal with charter issues while the waiver clause is in effect,” he said. “One possibility is for the court to declare how the law affects rights, even if the law is applicable. This would mean that society will at least have a better sense of what its elected leaders are doing on its behalf.
Leki said that “Lego’s approach – using a preventively large, broad independence clause – seeks to ensure, in a sense, that society never knows the impact of the law on fundamental rights.”
The courts
Opponents turn to sections of Bill 96 that deal with the legal system, arguing that they run counter to section 133 of the Constitution Act of 1867, which guarantees the right to use the courts in English or French.
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According to Bill 96, court pleadings must be in French or accompanied by a translation. In most cases, it is not necessary for judges to speak a language other than French. Any judgment in English must be accompanied immediately by a French translation.
Leki said the challenge could focus on “the way the law interferes with the bilingual work of the courts.” The obligation for the legal person conducting the proceedings to provide a French translation of the judgments may violate the constitutional rights to use English and French in the courts.
Opponents may argue that changes in the appointment process could affect the appointment of bilingual judges, thus undermining the constitutional guarantee of English and French courts, Leki said. Some may argue that the law violates the constitutional principle of judicial independence, he added.
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Eric Maldoff, a lawyer who has acted as a constitutional adviser to the federal government, said Bill 96 “creates a lot of bureaucratic, administrative and other costs and obstacles to the use of English in the courts.”
Indigenous rights
Indigenous leaders can fight Bill 96 in court, arguing that the law will weaken indigenous languages and that imposing more French courses on CEGEP students will harm the success of indigenous youth.
The great leader of Kahnawake Kahsennenhawe Sky-Deer said the law was a “cultural genocide” and an attempt to “get our future out of us”. Gislen Picard, head of the Quebec-Labrador First Nations Assembly, accused Lego of imposing “great linguistic injustices … in the name of narrow and divisive nationalism.”
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The next steps are being weighed while Kahnawake’s Mohawk Council consults with community members on possible political and legal action, Chief Mike Delil said in an interview. Options include joining non-local litigation; challenging the law based on section 35 of the 1982 Constitution Act, which affirms the rights of indigenous peoples; and bringing the issue to the UN. More Kahnawake protests are possible after recent demonstrations that disrupted traffic on the Mercier Bridge and Route 132.
Kahnawake has halted all “political, administrative and technical discussions” with the Quebec government over the law, Delil said. The community wants a meeting between Sky-Deer and Legault to discuss “accommodation” by law.
“We don’t understand the rationale behind Bill 96,” Delil added. “There are over 7 million French-speaking people in Quebec. How is (French) in danger? “
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Change of the constitution
Bill 96 aims to change part of the Canadian constitution to confirm 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.
“Despite someone’s feelings on these issues, legally and constitutionally, Quebec cannot unilaterally change the Canadian constitution,” said Joe Ortona, a lawyer who chairs the EMSB.
Education
The EMSB says Bill 96 runs counter to section 23 of the charter, which covers the right to education in minority languages, and cannot be repealed by the independence clause.
In its action, the EMSB stated that the Charter “guarantees the exclusive right of” the management and control of representatives elected by the minority language community over aspects of minority language education “.
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Ortona said that “the obligation of Bill 96 on the English School Board to communicate in French and to work in French with other English school boards and to work in French with each other and in our communications goes beyond our management and control …
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