Bill 96 could be challenged in court, says Quebec Bar

QUEBEC CITY -

Despite all the legal precautions taken by the Legault government to make its sweeping reform of Bill 101 ironclad, Bill 96 is likely to be challenged in the courts.

That's according to the Quebec Bar Association, which is convinced that Bill 96, sponsored by Minister Simon Jolin-Barrette, isn't on solid legal ground, despite the inclusion of a clause to override the Charter of Rights.

In its brief presented to parliamentarians by Quebec Bar Association president Catherine Claveau as part of the consultation on Bill 96, the Bar says it believes there is a "high risk of legal challenges" to the legislation. The bill aims to modernize Bill 101 or the Charter of the French Language.

The government has included a notwithstanding clause in Bill 96 to protect it from potential legal challenges. In May, when the bill was introduced, Premier François Legault justified it by saying that "the very foundation of our existence as a francophone people in America" was at stake. Collective rights had to take precedence over individual rights, he said. Jolin-Barrette recounted that Bill 101, adopted in 1977, had been largely hacked down by the courts.

According to the Bar, even if the use of this clause is legal, it could contravene the constitutional rights conferred by section 133 of the Constitution Act, 1867, that is, the right of every citizen to use French or English when appearing before a court.

According to the Bar Association's analysis, several aspects of the bill are likely to be challenged in court -- and eventually struck down by the courts.

For example, there are questions about the primacy of the French version of laws and regulations enshrined in the bill, when the principle of equality of legal status of the French and English languages has been confirmed by the court.

There are also questions about the prohibition on requiring bilingual judges as needed. The Bar is also concerned that Bill 96 will undermine the principle of judicial independence and access to justice in English.

The Bar is proposing that the requirement to provide a French version of a judicial decision written in English 'immediately and without delay' be removed from the bill, as it could undermine judicial independence through translation delays.

The independence of the judiciary could also be threatened, it said, by the government's willingness to waive the requirement that new judges be bilingual, unless the justice minister believes that knowledge of a language other than French is truly necessary.

Earlier, constitutional expert, University of Ottawa professor and former minister in Jean Charest's cabinet, Benoît Pelletier, sounded a very different note, defending the notwithstanding clause included in Bill 96, a clause in which he sees "nothing indigestible, nothing undrinkable."

On the contrary, this provision allows parliaments "to have the last word on certain issues that they consider fundamental," he told elected officials, convinced that Quebec has not abused this clause in the past.

He reminded them, however, that no Quebec law could override section 133 of the Constitution Act, 1867.

The former minister responsible for intergovernmental relations said he hoped the Legault government would explore the possibility of giving Quebec its own constitution.

He also said he hoped the National Assembly would reaffirm Quebec's non-adherence to the unilateral patriation of the Canadian constitution in 1982. 

- This report by The Canadian Press was first published in French on Sept. 29, 2021.