Three things most likely to be legally challenged in Bill 96
Even before Bill 96 was adopted earlier this week, changing the scope of Quebec’s language laws, some local lawyers said they were putting together a plan to challenge it.
They were joined two days later by the English Montreal School Board, which said it would launch a legal fight against the bill.
But what in the bill, exactly, will they be attacking? The EMSB so far hasn’t specified, just saying it believes the bill compromises its right to deliver an education system as it chooses to do.
And the group of lawyers, whose spokesperson so far has been constitutional lawyer Julius Grey, hasn’t laid out their full legal logic yet -- they’re still working on it and aren’t going to rush it, Grey says.
However, there are a few parts of the bill that Grey says are most obviously ripe 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.
Canadians’ basic rights in the justice system cannot be overridden by using the notwithstanding clause, Grey said in an interview this week.
The Legault government used that clause to pass the bill, pre-emptively protecting it from charter challenges, but that won’t protect any part of the bill that compromises people’s access to justice -- particularly, Grey says, the notion that people can be made to pay for court translations, as the bill requires for certain documents.
“The thing that's most literally unconstitutional is the rule that you have to accompany an English procedure by a French translation,” he said.
“In other words, you put a price -- at your expense,” on using the justice system, he says.
“It's like saying you have freedom of expression, but you have to pay the government $20 every time you use it.”
Not just any translation can be used in court. It’s expensive to get an official translation, Grey said. Quebec’s association of legal translators couldn’t be reached on Friday to explain the cost breakdown.
It also takes time to get translations ordered and produced, he added.
“If you're in the last day before [a court] prescription, then it may not be feasible -- you may lose your case, because you haven't had time to do the translation,” he said.
Aside from people’s constitutional rights around justice, there were also two Supreme Court decisions, known as Blaikie 1 and Blaikie 2, that looked specifically at Quebec’s obligation to provide a bilingual justice system. The translation rule is contrary to Blaikie 2, Grey said.
To him, it’s also a fix to a problem that doesn’t exist -- the province’s bilingual justice system is working well, with everyone’s cooperation and goodwill.
“There's an awful lot that's wrong with the system of justice, basically, on the level of accessibility -- It's not accessible, it's too expensive and so on,” Grey said.
“But not on the bilingualism - the bilingualism is fine.”
In criminal cases, the accused has the right to have the case heard in English or French. If someone testifies in another language, it’s translated, but “on the whole, what you find in the system of justice is that it just works,” he said.
“Lawyers and the judge help out if one party has not understood something or whatever. It's rare. I've never seen any difficulty with the language side.”
2: Quebec's language watchdog can search lawyers’ and notaries’ offices
The Office québécois de la langue française or OQLF, as this office is known, is what monitors Quebecers’ use of French at workplaces and in public settings, such as signage.
Its powers are expanded in Bill 96, but there are still some things that are likely sacrosanct beyond the shield the notwithstanding clause provides, Grey said.
The OQLF is “given bigger power… than the police has in investigating murders,” he said, and greater powers than they would get under the Emergency Measures Act.
“Obviously, speaking English isn’t worse than murder,” he said, but in a couple of particular cases, a court may agree quickly that the law has overstepped.
The OQLF can search and seize documents from private, commercial offices and public ones that fall under the label “government administration” -- but some of those offices have their own rights against this kind of search.
“When it comes to seizures and searches in lawyers and notaries’ offices, the Supreme Court has held that the solicitor-client privilege is a fundamental principle of justice -- not in the Charter, but in the constitution,” he said.
“So it may be that they cannot allow the police to come in search notaries’ or lawyers’ files.
And, he added, “I don't think they can even allow them to search doctors’ files,” though that’s a question that’s been left more legally open-ended in Canada -- it may be time for a new judgment on the matter, Grey said.
In the health system, of course, “there are very serious penalties” for violating patient privacy, he said, “if you work at a hospital, for instance, and you look into somebody's file you have no business looking at for non-medical reasons.”
3: The bill creates a long-term division between ‘historical’ and ‘other’ English-speakers
“I haven't seen that in Canada before,” said Grey.
The idea of permanently separating two groups into this kind of two-tier system for a variety of daily purposes -- not just in terms of who qualifies for English education -- is new and calls for a legal challenge, he said.
Under the bill, new immigrants to Quebec would only be allowed to use English in all sorts of capacities for six months, after which they'd be required to use French, for example.
But "historic" English-speakers -- those with grandfathered rights to attend school in English -- wouldn't be subject to the same provisions, it appears. It's unclear so far how the system will work in reality.
In Canadian history, this kind of grouping-by-law is almost unheard-of, Grey said. There have sometimes been certain jobs reserved only for citizens, but that idea was “invalidated to a large extent under the Charter,” he said.
The only other example is Indian status, which has its own long roots.
“But on the whole, our tradition is not to create groups, distinct groups, based on heredity,” Grey said.
He added that “normal democratic countries don't categorize populations.”
When will Quebecers know more about the legal challenges and the shape they take? It could be a while, since Grey and the committee of other lawyers he’s working with -- the rest of whom haven’t been identified -- would rather do it well than do it fast, he said.
Earlier this week he said they intend to take the matter to the United Nations, as he did on an earlier language law in the early 1990s, if Canadian courts’ hands are tied because of the notwithstanding clause.
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