Even if it is shielded by the notwithstanding clause, the bill aimed at strengthening the Charter of the French language is open to legal attack, says the Barreau du Québec.
The Bâtonnière of Quebec, Catherine Claveau, pointed out the provisions that will face, according to her, a “high risk of legal challenges” if the National Assembly adopts Bill 96 in its current form. “Although the use of the notwithstanding clause is completely legal, it cannot relate to the language rights conferred by section 133 of the Constitution Act, 1867”, she affirmed during her passage in parliamentary committee Wednesday.
The Constitution of 1867 recognizes in particular the obligation of the legislature of Quebec to print and publish the laws in French and in English and the right to use French or English in any pleading or piece of procedure before the courts. The result of a “historic compromise”, article 133 “constitutes a constitutional minimum” from which the National Assembly cannot escape by brandishing the exemption clause of the Canadian Charter of Rights and Freedoms, underlines in broad strokes the Barreau du Quebec in the brief he submitted to the Committee on Culture and Education.
However, Minister Simon Jolin-Barrette proposes to “devote the preponderance […] in the Quebec legal order ”of the French language, by means of Bill 96. In doing so,“ the preponderance given to the French version by the bill could be liable to deny the equality status of the French versions and English ”of the laws and regulations provided for in the Constitution of 1867, warned the Bâtonnière Wednesday.
Dreaded waiting
The desire of the Caquista government to order the courts to attach a French version “immediately and without delay to any judgment rendered in writing in English” will also come up against article 133 of the Constitution Act of 1867, according to the Barreau du Québec. .
The professional order points to “a serious risk that judges do not exercise their true protected choice” of expressing themselves in the language of their choice in their judgments, he specifies. “If they chose to exercise it [leur véritable choix de rendre jugement en français ou en anglais], this would lead to additional delays associated with obtaining the judgment in the French and English versions ”, declared Mr.e Claveau. For example, she said she feared waiting for a judgment on the custody of a child or a judgment on the release of an accused awaiting the holding of his trial for lack of a French version available immediately.
Simon Jolin-Barrette, who is also Minister of Justice, considers the Bar’s concerns exaggerated. “At the federal level, in particular at the Supreme Court, in particular at the Federal Court, which are governed by the Official Languages Act, [de telles] dispositions [requérant une version anglaise et une version française à tout jugement] are present, and they, it works. So, for the federal government, that would be correct, for the Quebec courts, we can’t do that? »He asked Me Claveau during exchanges. “If it works at the federal level, so much the better,” replied the Bâtonnière.
Judicial independence scratched?
The Bar also maintains that Bill 96 violates the principle of judicial independence by removing the possibility for the Chief Justice of the Court of Quebec to require bilingualism from candidates for the bench without having the support of the Minister. of Justice and the Minister of the French Language. “This major change to the judicial appointment process could undermine judicial independence and thus undermine public confidence in the administration of justice,” said the Bâtonnière.
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