Opinion: Bill 96 fails to find the right balance

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Bill 96 has exposed deep divisions in Quebec society. It is clear that all Quebecers do not see the amendments to the Charter of the French Language in the same way.

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French is a minority language in North America and is constantly under threat from the widespread use of English internationally, both in commerce and in culture. But the threats to French in Quebec are not posed by Quebec’s English-speaking minority community. We believe that it is possible to support the vitality and development of French throughout Canada, bolstering both French-speaking official language minority communities outside Quebec and the Francophones in Quebec while also ensuring the vitality and development of the English-speaking minority in Quebec.

As federal MPs, we have closely watched the development of Bill 96 through the legislative process. We are very concerned that the bill removes certain fundamental rights for English-speaking Quebecers. The removal of those rights does not appear to contribute constructively to the laudable goal of protecting the French language.

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For the first time in Quebec history, Bill 96 links access to government services in English to eligibility to attend English schools. This means hundreds of thousands of English-speaking Quebecers can no longer obtain services in English, including many whose mother tongue is English. In addition, even those who can attend English schools will no longer be able to obtain birth certificates, marriage certificates or death certificates in English or file contracts in English with the land registry office or receive English communications from professional organizations.

We are also worried about Bill 96’s impact on immigrants and refugees. Take the example of a refugee from Ukraine or Afghanistan who arrives in Quebec speaking English and no French. Six months later, she will only be able to receive Quebec government services in French. Is this realistic or fair?

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But let’s focus on those parts of Bill 96 that intersect with the federal Constitution and its guarantees. It is in those areas that we as MPs have a particular responsibility to express our concerns.

Section 133 of the Constitution Act, 1867 safeguards the use of English and French in both the federal Parliament and National Assembly, as well as in federal and Quebec courts and tribunals. Bill 96 has introduced measures that appear to contradict Section 133 guarantees. For example, there is a new requirement to produce a certified French translation if a company or not-for-profit wishes to file court pleadings in English. This could impact the ability of social service organizations and of advocacy groups to intervene in cases involving vulnerable individuals, including refugees and asylum seekers.

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Meanwhile, Quebec’s Ministry of Justice no longer has the latitude to require English-language skills from candidates applying to be judges in the province’s courts and tribunals. English language proficiency for judges will only be allowed at the discretion of Quebec ministers, which might have the effect of politicizing the process. At a minimum, these changes and others will create delays, complexity and cost for anyone who wishes or needs to seek justice in English.

The notwithstanding clause is meant to be an exceptional recourse. It allows for fundamental freedoms to be limited in a way that is not reasonable in a free and democratic society. Many legal scholars understand the clause to be one that could solely be used following a court decision striking down legislation. Bill 96 uses the notwithstanding clause in a preemptive and omnibus way. We are deeply concerned about this type of use of the notwithstanding clause. It is a serious legal issue that needs to be resolved by the courts.

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We believe it is possible to promote French throughout Canada and recognize the threats faced by francophones in Quebec while respecting the rights of English-speaking Quebecers. We will keep working with both communities to find that balance.

Anthony Housefather is MP for Mount Royal. This piece is co-signed by fellow Liberal MPs Marc Garneau (Notre-Dame-de-Grace-Westmount), Patricia Lattanzio (Saint-Leonard-Saint-Michel) and Francis Scarpaleggia (Lac-Saint-Louis).