An Act respecting French, the official and common language of Québec (Bill 96), will plainly spur numerous interpretive debates within the public and before the courts.
I recognize that statutory interpretation doesn't normally inspire much interest among laypeople. Nevertheless, these debates involve stakes relevant to all of Quebec society.
For example, the courts will have to clarify their role vis-à-vis a legislature that views them as an irritant, at best, and cares little about fundamental rights.
And these debates will have concrete human consequences.
One question concerns the interpretation of the notwithstanding clause in the Canadian Charter of Rights and Freedoms.
This mechanism resulted from a political compromise in the early 1980s, but it remains subject to interpretation by the courts, like any other element of the Constitution.
Journalist Michel C. Auger has supported the interpretation by which the legislature could not use the notwithstanding clause until having lost its constitutional case in court, and Professor Jean Leclair has suggested, following other authors, that the courts may have a residual power to declare the violation of fundamental rights by a law that operates in virtue of the notwithstanding clause.
It remains to be seen whether the Court of Appeal of Quebec or the Supreme Court of Canada will take up the invitation made to them in the judgment relating to Bill 21 to set boundaries for recourse to the notwithstanding clause.
In that judgment, the court criticized the legislature's "careless and indiscriminate" use of the mechanism.
Other questions will bear on the interpretation of Bill 96.
Despite governmental assurances made in press conferences and in ads placed with public funds in newspapers, the enforcement of this law will generate disputes.
Think of the need to clarify the grey zone between the duty imposed on the civil administration to use French in an exemplary way and the exception foreseen when required by reason of health. What will be the impact on the health and social services sector?
Think too of the expansion of the inspection powers of the Office québécois de la langue française (OQLF).
Given the use of the notwithstanding clause, those powers are no longer constrained by the constitutional protection against unreasonable search and seizure.
What role will the general principles of administrative law play, the legislature appearing to have given advance approval to unreasonable and disproportionate practices?
More broadly, should Bill 96 be interpreted largely and liberally, or restrictively, given its status as an exception to fundamental rights?
The courts ordinarily complement the legislature's role. Judges clarify or fill in legislative formulations, advancing the legislature's declared or inferred objectives.
Sometimes they correct errors by the legislative drafters or smooth over contradictions. This function is part of the courts' fundamental role in supporting the constitutional order, including the rule of law.
But what happens when the legislature pursues an objective – here the preservation and promotion of the French language - that is opposed to the protection of fundamental rights and freedoms? Is the same generous and collaborative approach still warranted?
It's worth asking the question.
By a plausible approach, the courts would not be bound to collaborate with the legislature when it violates fundamental rights.
To be sure, judges must give its effects to any law protected by the notwithstanding clause. Yet mightn't they refrain from filling in any gaps in such a law or resolving its ambiguities?
After all, the legislature's decision to use the notwithstanding clause doesn't release the courts from their role as an independent, impartial check and balance in a liberal and democratic society.
Important as promoting the French language may be, the enactment of Bill 96 necessitates serious reflection concerning the roles of the three branches of government and the type of society in which we wish to live together.
-- Robert Leckey is dean of the Faculty of Law of McGill University.
