Law in Quebec

Bill 96, adopted after a year of heated debate, aims to bolster protection for Quebec’s official language by imposing new French language obligations affecting the language of work, commerce and business, contracts, signs, trademarks, education, health care and even the courts. The 100-page bill, comprised of 201 articles, amends 26 laws, including the Charter of the French Language, the Quebec Charter of Human Rights and Freedoms, the Civil Code of Quebec, and the Constitution Act, 1867.

But critics contend that the reform goes too far as it undermines entrenched constitutional rights by requiring court filings to be in French or translated into French at one’s own expense, empowers the minister for the French language to determine which provincial court judges need to be bilingual, and it grants the French language watchdog inspectors the power to search and seize without a warrant.

Detractors also fear that Bill 96 will impede English speaking Quebecers from gaining access to health care in English, are troubled that it puts a cap on enrolment in the English CEGEP (college) system, and are concerned that a small business with 25 to 49 employees will be subjected to onerous compliance requirements.

The provisions that unilaterally amend the Constitution Act, 1867 are particularly susceptible as are those that undermine access to justice, contend legal experts. Bill 96 adds a section titled “Fundamental Characteristics of Quebec” after s. 90 of the Constitution that stipulates that Quebecers “form a nation.” It also asserts that French shall be the only official language of Quebec, and that it is the common language of the “Quebec nation.”

“That obviously goes too far as a province can’t do that,” said a Montreal litigator who requested anonymity. “It needs to follow the amending formula for the Constitution Act. It can’t just willy-nilly amend the Constitution any more than any other province.”

Neither can the Quebec government compel, as stipulated by s. 9 of Bill 96, legal persons to attach a certified French translation to any pleading written in English who is party to a legal proceeding in the province as it violates the rights of Quebecers to use either English or French in the courts under s. 133 of the Constitution Act, 1867, asserts David Schulze, a founding partner of the law firm of Dionne Schulze. “Quebec can’t opt out of the Constitution Act, 1867 requirements on the use English in courts,” said Schulze. “Every person who goes before the court in Quebec has a choice to use English or French. That’s not part of the Canadian Charter, that’s part of the original pact of the Confederation. All they can opt out of is certain Charter rights.”

Section 9 of Bill 96 also runs afoul of two separate but related decisions by the Supreme Court of Canada, added Grey. In the landmark decision in Blaikie v. Quebec (Attorney General), [1979] 2 S.C.R. 1016, the Supreme Court held that the “guarantee” in s. 133 of the use of either French or English, including written and oral submissions as well as documents, applies to “all or any” of the courts of Quebec. Two years later, in a companion decision in Blaikie v. Quebec (Attorney General), [1981] 1 S.C.R. 312, the top court held that s. 133 also applies to rules of practice enacted by courts and quasi-judicial tribunals.

In the same vein, Grey maintains that Bill 96, An Act respecting French, the official and common language of Québec (Act), violates the rights of Quebecers to legislation of equal authority in English and French. Under s. 5 of the Act, if there is a discrepancy between the French and English versions of a statute, regulation or other Act that cannot be “properly resolved” using the ordinary rules of interpretation, the French text shall prevail. But Grey believes that this is an “indirect attack” on s. 133 and should be therefore deemed to be invalid.

In practice, these contentious provisions will make access to justice in English much more expensive and will discourage the use of English in the courts, and make it harder to “land on an English-speaking or bilingual judge and therefore making it less likely, all other things being equal, to be in front of a judge that understands the community,” said the Montreal litigator.

The English Montreal School Board (EMSB) has mandated Montreal law firm Power Law to challenge the validity of Bill 96 based on s. 23 of the Canadian Charter, s. 133 of the Constitution Act, 1867, and Part V of the Constitution Act, 1982. The EMSB believes that Bill 96 violates the English-speaking community’s right to management and control of its educational institutions under s. 23 of the Charter which is meant to allow minorities operate their school board in their own language.

Other parts of Bill 96 are also open to attack. The French language watchdog, the Office québécois de la langue française, has been granted more additional powers than “police investigating a murder or more power than Quebec granted itself” when it passed COVID-19 related emergency decrees, said Grey. Under s. 111 of the Act, office inspectors can enter at any reasonable hour any place, other than a home, take pictures of the place, and “cause any person” to provide access to computers or electronic devices to verify, examine, process, copy or print data. It is possible, though unlikely, that the offices of lawyers and notaries may, too, fall under this provision. “It seems on this issue, you need these special powers, which can be easily abused,” remarked Grey. “But I don’t believe lawyers’ and notaries’ offices can be subjected to this because the Supreme Court held that the solicitor-client privilege is a separate right, outside the Canadian Charter, and therefore not subject to the notwithstanding clause. These protections can therefore be determined by the courts, and not whatever this law says. Of course, it remains to be seen if the courts agree with me.”

BUSINESS CONCERNED

Businesses too are concerned about the new compliance requirements outlined by Bill 96 as it will have “strong repercussions” on organizations or co-contractors doing business in Quebec, said Antoine Aylwin, a Montreal lawyer with Fasken. Businesses with 25 to 49 employees will now be subject to the same “francization” requirements as those with 50 to 99 employees, which means that these SMEs will have to generalize the use of French across all levels of their business. They also have an obligation to develop a francization program in the event that the language office considers the analysis to be unsatisfactory. Business that fail to do so will be unable to contract with or receive subsidies from the Quebec government, its departments, public and semipublic agencies, health services and other public administration bodies. Moreover, employers who require the knowledge of a language other than French as part of the hiring process will have need to demonstrate, among other things, that the language skills required of other staff members are insufficient to accomplish the tasks of the particular position.

“They are a bit uncertain on how to apply the new provisions,” said Aylwin, co-leader of Fasken’s privacy and cybersecurity group. “It is a change of approach that is not necessarily obvious in practice. That’s where the concerns lie. Business, for instance, now have the onus to organize its activities in such a way as to require as little language knowledge as possible, other than French.”

The new obligations also appear to extend business under federal jurisdiction who have operations in Quebec, which will likely lead to a legal challenge, added Aylwin.

Indigenous leaders also are ostensibly looking at their legal options. Concerned that Bill 96 will lead to a weakening of their languages, an exodus of youth and challenges finding qualified people to hire, Indigenous leaders are calling for an exemption to the new law. Under Bill 96, students attending English-language CEGEPs will have to take five French language courts to graduate — an onerous prerequisite since Indigenous students often speak English first, followed by their traditional language and then French.