No government likes scrutiny, even less so legal challenges against their laws. The Quebec government is no different. But the François Legault government is taking it a step further and preemptively enacting provisions in its new laws or legislative proposals to bar impending legal challenges and constrain countervailing powers.
The controversial new law that revamps the way doctors are remunerated also prohibits doctors from engaging in what the government considers “concerted actions” to challenge government policies. Bill 2, An Act mainly to establish collective responsibility with respect to improvement of access to medical services and to ensure continuity of provision of those services, contains remedial measures and sanctions, including penal sanctions, to “ensure continuity of professional activities.” Under article 131, doctors are prohibited from participating in “any concerted action” that stops, reduces or slows down professional activities or “hampers” training in health and social services. Article 133 prohibits physician’s groups to “incite or induce” to undertake or persevere with “concerted actions.” In short, these provisions are intended to put an end to pressure tactics. Federations representing doctors can no longer call on their members to suspend teaching medical students as it has done in the past. It also prohibits doctors from leaving the public health system, either to go to the private sector or to another province. In fact, the new law gives the Quebec health board the power under article 134 to invalidate a doctor’s notice or intention to withdraw from the Health Insurance Act. What’s more, physicians and doctors’ groups face steep fines. Physicians can be fined up to $20,000 for each day an offence is committed, and groups a maximum of $500,000. Just as ominously the bill stipulates under article 181 that any person that suffers injury due to a physician’s participation in a concerted action “may apply to the court” to obtain “reparation” from the doctor. Olivier Jacques, an assistant professor at the Université de Montréal’s Department of Health Policy, Management and Evaluation described the measures as “authoritarian.” “It seems that the government is afraid that doctors would either leave towards the private sector or leave towards other provinces, and therefore put penalties,” said Jacques. So far more than 200 doctors have applied to practice outside of the province, even in the wake of severe sanctions for non-compliance. Labour too is on the government’s radar. Last May the Quebec government enacted a new law that gives it sweeping new powers to curb and limit strikes or lockouts by broadening the notion of essential services, enables it to adopt a decree to refer a labour conflict to the Administrative Labour Tribunal, and grants the labour minister the power to refer labour disputes to an arbitrator. Critics have panned Bill 89 as nothing less than a direct frontal attack on the constitutionally protected right to collective bargaining. Quebec Minister of Labour Jean Boulet has gone a step further with the recent tabling of Bill 3. Boulet maintains the bill is supposed to promote greater transparency, strengthen governance and improve the democratic process within unions. That’s not how labour sees it. “What they want to do is muzzle us” because it annoys the provincial government when unions challenged its political vision, remarked Magali Picard, head of the Quebec Federation of Labour. That’s because Bill 3 introduces a concept that will undoubtedly be challenged before the courts. The bill, which amends both the Labour Code and the Act respecting labour relations, divides union dues into main and optional contributions, which would be used to finance activities other than the defence of workers. The bill plainly stipulates that a union that wants to collect optional dues to finance “certain determined activities” must first consult its members at a meeting. These activities include launching legal challenges over the constitutionality or validity of a law, running ad campaigns or participating in social movements. “It’s a step by step programme to neutralise the unions,” said Étienne Cantin, professor and director of postgraduate programmes in the industrial relations department at Université Laval. Mélanie Dufour-Poirier, professor at the School of Industrial Relations at the University of Montreal, takes an even dimmer view behind the Quebec government’s recent legislative proposals. “To say and claim that trade unions have no role to play in politics is to show that the government does not understand the fundamentals of labour relations and is ignorant of trade unionism in Quebec,” said Dufour-Poirier. “This is a government that does not tolerate the existence of countervailing powers or the legitimacy of a trade union presence. We are faced with a government for which the notion of accountability is good for everyone except itself, as evidenced by its mismanagement of public funds.” The Quebec government is also taking steps to enfeeble Quebec’s Charter, contend critics. Enacted this past May, Bill 84, An Act respecting integration into the Québec nation, amends the Quebec Charter by adding yet another overlay to s. 9.1, as they did with Bill 21, according to Sam Boskey, first vice-president of the Ligue des droits et libertés, a not-for-profit human rights organization based in Montreal. That section stipulates that a person, in exercising their human rights and freedoms, shall maintain a “proper regard” for democratic values, state laicity, the importance given to the protection of French, public order and the general well-being of the citizens of Quebec. It is a section that the Supreme Court of Canada said in Ward v. Quebec (Commission des droits de la personne et des droits de la jeunesse), 2021 SCC 43 “temper\[s\] the absoluteness of the freedoms and rights set out in ss. 1 through 9.” “By adding layer after layer into 9.1, what they are doing is creating a hierarchy of rights,” said Boskey. “The things listed in 9.1 are supposed to have more priority than the other rights, and this goes against the basic principles of human rights law, which is rights are indivisible. This demonstrates to us, at least, that this government may want to use the vocabulary of human rights, but there is really very little respect for the Quebec Charter, and there is very little concern for the human rights impact of the legislation that they’re going to be undertaking.” Louis-Philippe Lampron, a law professor and human rights expert at the Université, is concerned that the provincial government is stepping up efforts to enfeeble the Quebec Charter with the tabling of Bill 1. That recent legislative proposal would enshrine a provincial constitution and introduce sweeping legislative changes that legislation would considerably change the province’s legal landscape and curb countervailing oversight on multiple fronts, assert constitutional law experts. The litany of changes introduced by Bill 1 represent another clear indication that the Quebec Charter’s “effectiveness” is endangered, said Lampron. Ever since the passage of Bill 21, the Act respecting the laicity of the State, the Quebec Charter has been under attack by Premier François Legault’s Coalition Avenir Québec (CAQ) government, he added. Bill 1 represents an effort to “step on the gas to literally transform” the Quebec Charter from a document that is binding on the legislature to a text that would essentially be declaratory in nature, asserted Lampron. Under Bill 1, it will no longer be the courts that will be able to challenge the choices made by the national assembly on the basis of rights and freedoms but rather the province’s legislative body itself that will determine the limits of human rights and freedoms, he said. “This in itself is antithetical to the very idea of human rights and freedoms,” he noted. “This is a direct attack on the effectiveness and supra-legislative nature of the Quebec Charter of Rights and Freedoms.”
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