LANGUAGE RIGHTS UNDER HEALTH ACT WILL NOT BE TIED TO ‘HISTORIC ANGLOPHONE’ DEFINITION

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The Committee on Culture and Education reconvened yesterday for its ongoing clause-by-clause consideration of Bill 96, An Act respecting French, the official and common language of Québec. Members began with article 6 of the legislation, that requires the civil administration to use the French language, promote the languages’ quality, protect it, and ensure its development, all in an ‘exemplary manner’. Article 6 seeks to modify articles 13.1 and 13.2 of the Charter of the French Language (Bill 101).

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THE RULE OF LAW

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Once upon a time in the West, the law was determined by, enforced, and adjudicated by the ruler. But the ruler was not subject to the law. He or she was placed above the law. The ruler was sovereign and considered immune, with a divine source of power…

Two things happened. The nobility – which had to pick up the tab for and fight the sovereign’s wars – became fed up with the capricious exercise of royal power. This is what the great Magna Carta Libertatum agreed to by King John at Runnymede in 1215 was all about. It would take a few more centuries however for the West to land on the idea that the sovereign was a subject of law, and that the source of their power was not divine, but derived from the governed.

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WHAT IS PARLIAMENTARY SOVEREIGNTY?

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Quebec’s Bill 96, An Act respecting French, the official and common language of Québec would add the following paragraph to the preamble of the Charter of the French Language:

“Whereas, in accordance with parliamentary sovereignty, it is incumbent on the Parliament of Québec to confirm the status of French as the official language and the common language and to enshrine the paramountcy of that status in Québec’s legal order, while ensuring a balance between the collective rights of the Québec nation and human rights and freedoms.”

In addition, the following was included in the preamble to Bill 21, An Act respecting the laicity of the State:

“AS, in accordance with the principle of parliamentary sovereignty, it is incumbent on the Parliament of Québec to determine the principles according to which and manner in which relations between the State and religions are to be governed in Québec.”

Parliamentary supremacy – although it’s referred to as sovereignty in both the preambles above – represents a core element of United Kingdom constitutional law. This is a principle to provide the legislative branch of government, Parliament, with the ultimate legal authority to create (or repeal) any law. In theory, British courts cannot overturn or change laws passed by Parliament. This is because the power to make laws is vested with the elected House of Commons, with the House of Lords reviewing legislation. British courts doled out the monarch’s (the executive branch of government) justice. In a nutshell, if the courts could overturn laws passed by the legislative branch, the monarch would be able to make an end-run and be empowered to thwart the will of the House of Commons. This system was carefully built on a series of compromises following the English civil wars of the 17th Century…

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BILL 96 AND THE DEAF: THE UNINTENDED CONSEQUENCES OF LEGISLATION

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Quebec recently unveiled plans to make substantial changes to the Charter of the French Language through Bill 96, An Act respecting French, the official and common language of Québec. The purpose of Bill 96 is “to affirm that the only official language of Quebec is French.” It also affirms that French is the common language of the Quebec nation. Bill 96 pre-emptively invokes Section 33 (the notwithstanding clause) of the federal Charter of Rights and Freedoms, which would shield the Charter of the French Language from judicial review.  In a nutshell, Quebecers will lose their fundamental freedoms, legal, and equality rights in the application of the Charter of the French Language.

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LE PROJET DE LOI NO 96 ET LA COMMUNAUTÉ SOURDE : LES CONSÉQUENCES IMPRÉVUES DE LA LÉGISLATION

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Québec a récemment dévoilé ses plans de modifier la Charte de la langue française en passant par le projet de loi no 96, une Loi sur la langue officielle et commune du Québec, le français. L’objectif du projet de loi no 96 est d’« affirmer que la seule langue officielle du Québec est le français. », en plus d’affirmer que le français est la langue commune de la nation québécoise. Le projet de loi no 96 invoque en outre l’article 33 comme mesure préventive (la clause nonobstant) de la Charte canadienne des droits et libertés qui protégerait la Charte de la langue française d’une révision judiciaire. En bref, les Québécoises et les Québécois perdront leurs libertés fondamentales, leurs garanties juridiques et leurs droits à l’égalité dans l’application de la Charte de la langue française.

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MANY REASONS TO PARTICIPATE IN CENSUS

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The first census in North America was conducted in 1666 by the Intendant of New France, Jean Talon. Going door to door, he recorded the names, ages, genders, and occupations of members of the population. This was the beginning of the national census that would eventually serve as a great contributor to our social development and to advancement in Canadian society.

Of course, there have been changes to the census over the years to reflect the changing Canadian landscape and to collect as much evidence as possible about the population. As the government looks to improve the lives of its citizens, the census helps to identify key socioeconomic trends in Canadian society. This, in turn, provides the government with vital information it can use to make decisions on national needs to be addressed.

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WHAT EXACTLY IS THE NOTWITHSTANDING CLAUSE, AND WHY DOES IT MATTER?

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Canada’s Constitution includes an ‘entrenched’ bill of rights; the Charter of Rights and Freedoms. Our Charter comprises 34 sections of the Constitution Act, 1982. Thus, it enshrines our fundamental freedoms and rights. These include our democratic, mobility, legal, equality, and official language rights.

With Confederation, the doctrine of parliamentary sovereignty (or supremacy) in the Westminster tradition of government was adopted by Canada and the provinces. In its purest form, a legislature can enactor repeal any law it chooses. From the beginning, this doctrine has been limited by Canada’s federal framework, which allocates legislative powers between the national government and the provinces.

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UNDERSTANDING AN OFFICIAL LANGUAGE MINORITY COMMUNITY

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Canada is a federation, with the federal and provincial governments operating within defined areas of responsibility. Canada has two official languages, English and French. Some provinces, like Quebec, New Brunswick, Manitoba, and the Nunavut territory, also have their own official languages strategies.

Two ways of thinking about official languages are particularly useful: using a national perspective; and then using viewpoint of a province or territory.

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FEDERALLY REGULATED BUSINESSES AND THE NEW OFFICIAL LANGUAGES LANDSCAPE

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In Quebec, language rights are provided to most workers under the Charter of the French Language. This differs for people who are employed by a federal institution, a Canadian Crown Corporation, or Air Canada. Their language rights are defined under the Official Languages Act (OLA).

However, the language rights of about 135,000 employees at an estimated 1,760 federally regulated private businesses in Quebec are not currently subject either the OLA or the Quebec Charter. This represents about 4.4 per cent of the province’s workforce.

So there is a ‘mischief’ in the law.

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HOW POWERS ARE DIVIDED BETWEEN OUR FEDERAL AND PROVINCIAL GOVERNMENTS

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Many issues in the news these days directly relate to Canada’s fundamental structure – the way legislative powers are allocated by our Constitution. Three examples come immediately to mind: how the federal and provincial governments are co-managing the COVID-19 pandemic; the way some provinces are contesting the Government of Canada’s carbon tax; and the application of language rights.

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