Bill 96 challenged over translation requirement for court documents

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Quebec’s controversial Bill 96 is being challenged in court for the second time since it was adopted, this time over a French translation requirement for court documents filed by corporations.

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An application for a judicial review was filed Tuesday by a group of lawyers and a corporation, who argue two sections of the bill contradict the 1867 Constitution Act by forcing corporations to submit certified French translations alongside English court documents, at their own expense. Without official translations, the documents will not be accepted.

“It creates an obstacle for the official language minority of Quebec to access the courts,” Félix-Antoine Doyon, one of the plaintiffs’ lawyers, told the Montreal Gazette Thursday. “We agree with the importance of protecting French in Quebec — it’s just that here, we consider that the two (sections of the bill) violate the rights of Quebec’s official language minority.”

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The legal challenge highlights that Section 133 of the Constitution Act states either English or French can be used “by any person or in any pleading or process in or issuing from any court of Canada established under this act, and in or from all or any of the courts of Québec.”

The courts should therefore declare sections 9 and 208.6 of Bill 96 constitutionally invalid, the plaintiffs argue. They also request for the application of the sections to be suspended before they come into effect in September, until a decision is reached, given that they impede access to the courts.

Doyon considers the Constitution Act “crystal clear,” and said that challenging this aspect of Bill 96’s contradiction of it will do just as much to protect the language rights of francophones living in the rest of Canada as it will to protect the rights of English- speaking Quebecers.

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“If we were doing the same thing in Alberta for example, the same arguments could apply, but the opposite — in regard to the language minority in the province, the Francophones,” he said.

“We don’t want to oppose English or French, it has nothing to do with that,” Doyon added. “It’s a strictly constitutional question that’s related to the respect of Quebec’s official language minority.”

The court documents draw comparisons between the current argument and a similar one that arose in response to Bill 101, the Charter of the French Language. A similar contradiction between sections of Bill 101 and the Constitution Act resulted in the Supreme Court ruling, in 1979, that the latter ensures a right to use one’s official language of choice in the courts and that a person cannot be required to use both.

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“The Canadian Constitution has been clear since 1867,” Doyon said. “It’s clear that people in Canada have the choice to address the courts either in French or in English.”

Earlier this month, the English Montreal School Board filed a 47-page lawsuit at the Montreal courthouse to challenge Bill 96, arguing that it violates the Constitution in multiple ways, including how it “impermissibly infringes on the right to management and control of minority language education exercised by the EMSB under Section 23 of the Canadian Charter of Rights and Freedoms.”

Section 23 of the charter covers minority language educational rights in Canada, and cannot be overridden using the Charter’s notwithstanding clause.

Bill 96 — which could affect many aspects of life — is expected to face other legal challenges, including potentially for issues relating to health care and Indigenous rights.

With files from the Montreal Gazette’s Paul Cherry.

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