A sneak attack on language rights

Tom Mulcair was the leader of the New Democratic Party of Canada between 2012 and 2017. 

Quebec and the Constitution are back in the headlines and anyone who remembers Meech and Charlottetown will understandably want to duck and cover. This time around though,  no one is asking for consent from other provinces or from Canadians via a referendum.

Quebec has included what it claims to be unilateral amendments to the Constitution Act 1867 (the B.N.A. Act) in a sweeping proposal  (Bill 96) that seeks to reinforce the status of French there. Many of those changes are indeed provincial in nature and deal with things like labour and consumer rights. The scope and effect of those types of changes will be the object of a good debate in Quebec’s legislature, the National Assembly, and given Legault’s majority most will pass into law.

Because it also affects rights concerning the language of legislation and the courts, Bill 96 deserves a much more thorough review than the nodding approval party leaders in Ottawa have quickly given to that part of it that seeks to amend the constitution unilaterally.

This is a subject I’ve spent much of my career working on. My first job in the Legislative branch of the Quebec Justice Ministry included a memorable mad dash as everyone scrambled, in December of 1979, to react  to a Supreme Court decision that had just been rendered in the Blaikie case. We had to quickly prepare, for re-enactment, all of the Québec laws adopted since the original Charter of the French Language (Bill 101) went into force in August of 1977. Bill 101 removed the obligation that had existed since 1867, in that same B.N.A. Act,  to simultaneously enact all laws in English and in French.

The Blaikie case, as it is called, was important for several reasons. First, the judges unanimously ruled that section 133 of the B.N.A . Act, that requires English and French in laws and in the courts, was not part of Quebec’s constitution and therefore could not be amended unilaterally by the province. Second, the Supreme Court simultaneously corrected a much older illegal Act, the Manitoba Official Language Act of 1890, that removed the French-language rights that had been promised in the Manitoba Act of 1870.

Language rights go to the core of our nation because they deal with the promises we made as this great country of ours came together. It’s been a rocky road at times but the Official Languages Act provided, over 50 years ago, a fresh boost to those promises. Pierre Trudeau even lost one of his prominent Western ministers over the issue. That minister, James Richardson, was from one of the most prominent Winnipeg families and he stood firmly against official bilingualism.

I wound up working in Manitoba after the Supreme Court ruled, a second time,  that all the laws there had to be translated and French and English had equal standing in the courts. That second ruling, in 1985, had become necessary because the Manitoba  government had ignored the first one, arguing (without much of a straight face) that the prior ruling was directive and not mandatory. Keen observers will note that it took over 95 years for Manitoba francophones to have their rights restored and and barely two years for anglophones in Quebec to get theirs.

It was of course mandatory and right after that second Supreme Court ruling, I’d been hired to help oversee and revise the translation of some 10,000 pages of laws and regulations. It was a Herculean task and the Supreme Court was there to monitor and ensure compliance with its definitive ruling.

It’s that history that makes Justin Trudeau’s acquiescence so surprising. He appears to sincerely believe that section 45  of the 1982 Constitution applies to Quebec’s unilateral changes to the B.N.A. Act and that the proposal is legitimate because it only affects the province’s own constitution.

But there’s another section, 43, that says that if the changes affect the right to use English or French, then you need a debate and a motion from both the House of Commons  and the Senate before the change can take place.

Section 43 was ably used by former premier Lucien Bouchard to change Quebec’s constitutionally guaranteed Catholic and Protestant school boards into a French and English system. The House of Commons and the Senate had had to discuss and vote and the English-speaking community of Quebec was consulted and widely agreed. That’s how you change a constitution: you discuss, debate and vote.

Legault’s proposed changes to the B.N.A. Act do indeed affect language rights. Trudeau, Erin O’Toole and Jagmeet Singh with their “move along, nothing to see here” attitude are trying to convince themselves and us that this is simply about Quebec amending its own constitution. That’s the argument Quebec had unsuccessfully argued before the Supreme Court in the Blaikie case back in the 1970’s. With these changes, it could win that case today.

What is and what is not part of the province’s constitution? To begin with, a few paragraphs above, I committed the unpardonable by referring to Quebec’s legislature as…a legislature! The Quebec National Assembly is called that because Quebec decided it preferred the terminology from France and it unilaterally changed the name of its legislature to l’Assemblée Nationale. Pas de problème.

So too when Quebec decided  (like every other province that had one) to deep-six its ‘Legislative Council’ decades ago. It had every right to axe its provincial senate. It was Quebec’s call as it was, indeed, purely the jurisdiction of the province.  Not so with the changes being proposed now by Quebec.

Here they are in detail: “Quebecers form a nation” and  “French shall be the only official language of Quebec. It is also the common language of the Quebec nation”.

When you go through Bill 96, you see proposals to change a series of laws including the Civil Code and the Code of Civil Procedure, to remove the right to produce certain official documents if they’re written in English. An English-language birth certificate from B.C. will henceforth have to be officially translated as if it were from some obscure corner of the world with a little-known language. This is not just the Quebec constitution. This is the right to use English and French as contemplated by section 43. It is impossible that the lawyers at the Justice Department in Ottawa didn’t see this.

Bill 96 has to be read as a whole. Sections have to be construed in context, one with regards to the other in order to understand the overall effect. The context includes changes to existing language rights. The legislator is never presumed to be talking for no reason, the unilateral  changes to the B.N.À. Act are intended to produce and shield the desired overall result: less English in Justice, legislation and the courts.

Québec Justice minister Simon Jolin-Barrette was recently in a knock-down, drag-out fight with the Chief Justice of Quebec Court, Mme Justice Lucie Rondeau. Jolin-Barrette didn’t like the fact that the postings for new judicial appointments required a knowledge of English. She patiently pointed out that there is a constitutional right to a trial in English and that it’s up to the courts to ensure respect of that obligation. Jolin-Barrette didn’t agree and he’s using Bill 96 to remove  bilingualism as a systematic requirement for future judicial appointments even in areas with large anglophone populations. The right to a trial in English will rapidly become theoretical.

Years before Bill 101, Robert Bourassa’s Bill 22 had already proclaimed French to be the official language of Quebec. Stephen Harper had championed a motion in the House of Commons proclaiming Quebecers to be a nation. So what’s the big deal?

The big deal is that Bill 96 does indeed remove existing rights. Professionals, including lawyers, will lose their right to practise law if they fail to maintain what will become a new continuing requirement for a mandatory knowledge of French. Tests or other qualification at the beginning of their career (I had to take one to join the Bar) used to remain valid througout. They would henceforth be deemed to be subject to review and revocation of licensure in case of insufficient knowledge of French.

The big deal is that once those unilateral constitutional amendments are in place, the Quebec attorney general might succeed where their predecessors had failed in 1979. They could point to the new sections as proof that Quebec can indeed adopt its legislation in French only and provide an English translation later on. That could negatively effect everyone’s language rights across Canada as other provinces such as Manitoba and New Brunswick could take note and follow suit.

In 2019, the Quebec and Montréal Bar Associations settled lawsuits that sought to ensure that Quebec respect its constitutional obligation to produce an English version of statutes had equal footing with the French, especially in terms of preparation of amendments. The “Mulcair precedent” referred to in those proceedings was mine. Having worked in Manitoba and been part of the debates there, I knew what the Supreme Court required and I raised it repeatedly when I was a member of the National Assembly. That constitutionally guaranteed equivalent of the English and French versions is in peril with these changes being endorsed by Trudeau and his pliant justice minister David Lametti.

There is a constant whittling away of the status of French and of French-language institutions throughout Canada and all Canadians should  be aware of it and demand their governments help to right that wrong. The most recent heartbreaking example is the scuppering of key French-language programs at Laurentian University in Sudbury leaving many francophone Masters and PhD students high and dry. There is money in the most recent federal budget to come to the aid of minority francophone education in just such a case but so far language minister Melanie Joly has done nothing.

That type of continuing tragedy for the French minority in Canada is correctly pointed to as deux poids deux mesures when comparing the institutions of the English in Quebec and the French outside Quebec.

The essential question for our country’s future is this: do we want to aspire to greater rights for all Canadians or are we going to simply level things downwards, to the lowest common denominator?

Trudeau seems to have veered away from his often espoused vision of a bilingual multicultural Canada towards one where linguistic and religious minorities are on their own. When he and Lametti refused to lift their little fingers to help hard-pressed religious minorities fighting in court against Quebec’s discriminatory Bill 21, the writing was on the wall.

Rights are essential. Failure to defend those rights comes at a cost to our strength, unity and well-being as a country, long term. Short term electoral priorities are no substitute for thoughtful defence of fundamental values and rights.

It’s clear that neither Trudeau nor O’Toole nor Singh has given a great deal of thought to the substantive sections Bill 96. The great irony is that even if they went the route of the more demanding section 43, there’s absolutely no doubt that the House would pass a motion approving it. Trudeau has claimed that he has a legal opinion stating that Québec can indeed proceed on its own to amend the Canadian constitution without even bringing the issue before Parliament. When Lametti was asked on an English Montréal radio station if he was willing to share that legal opinion with Canadians, he skated.

Legault has a clear plan for pulling Québec away from, if not out of, Canada. That plan, as revealed by Legault himself, has three components: language, immigration and culture. He is running circles around our current crop of leaders in Ottawa.

Despite the historical long odds, if done right, there really is reason to hope that this could be turned into a rare opportunity for a deeper understanding of the real differences that exist between the two solitudes. But it can’t be done in a sneaky, backhanded way, without a proper debate as required by the Constitution.

Trudeau is wrong to say the constitution of Canada can be amended unilaterally by Québec. It is not wrong to follow the constitution to bring about change that can close a tough chapter in our history. After all, the much maligned 1982 Constitution, that Quebec never signed, could wind up being used by Québec to try to improve things for the future, as long as rights are guaranteed and respected from coast to coast to coast.