DEFENDING THE LANGUAGE RIGHTS OF ENGLISH-SPEAKING QUEBECERS

QCGN Urges Quebec Government to Backtrack on Bill 96

The Quebec Community Groups Network appeared before the National Assembly Committee on Culture and Education on Sept. 28 to articulate its views and deep concerns about Bill 96, An Act respecting French, the official and common language of Québec.

Bill 96 proposes nothing short of the greatest overhaul to Quebec’s legal order since the Quiet Revolution. It is a constitutional project. It would disrupt the two-decades-old social peace around language in Quebec. It would fundamentally change the structure of the Quebec state and legal order. It would upend 40 years of human rights protection in Quebec. It would affect many areas of life for all Quebecers. Its policy basis is questionable. A change of this magnitude requires serious discussions and debate within Quebec society. It ought not to be pushed through the legislature during a pandemic when public attention is rightly focused on health and the economy.

Because invitations to this Committee’s proceedings were so limited, the QCGN carried out public consultations on Bill 96. The 26 briefs submitted through those consultations were appended to QCGN’s brief to the National Assembly and are linked found below.

In its brief, the QCGN articulates three sets of concerns: First, Bill 96 would fundamentally alter the Quebec state, which is of concern to all Quebecers. Second, Bill 96 would make it harder to do business in Quebec, which is also of concern to all Quebecers. Third, Bill 96 would have adverse impacts on the 1.1 million Quebecers who belong to the English-speaking minority.

The QCGN supports the policy goal of promoting the French language in Quebec. However, the QCGN is convinced there are more effective and inclusive ways to achieve this goal than the measures in Bill 96 to the benefit of all Quebecers.

The QCGN put forth the following recommendations:

  1. Withdraw the Bill in its entirety. Because it raises such profound questions for public governance and Quebec society, the QCGN recommends that the Bill be withdrawn.
  2. Carry out wide public consultations on how to protect and promote the French language, engaging all areas of Quebec society. The QCGN supports the objective of protecting and promoting the French language, but Bill 96 is not the way to go about it. If protecting French is a policy priority, this government should undertake broad public consultations in order to identify the measures that Quebecers believe will best achieve this goal.
  3. If the Bill is not withdrawn in its entirety, the Bill ought to be overhauled. Throughout its brief, the QCGN makes a series of specific recommendations to withdraw or reform the most problematic parts of the Bill. The most important are the following:
  4. Remove the human rights overrides (notwithstanding clause).
  5. A reference question on the constitutionality and meaning of the amendment to the Constitution Act, 1867 should be sent without delay to the Court of Appeal of Quebec.
  6. The right to communication and services in English should never be based on eligibility for English instruction.

View our testimony before the Committee on Culture and Education

Marlene Jennings, President of the Quebec Community Groups Network, former Minister and MNA Clifford Lincoln, QCGN’s legal counsel Marion Sandilands, and human rights lawyer Pearl Eliadis testified before the National Assembly’s Committee on Culture and Education Special consultations and public hearings on Bill 96, An Act respecting French, the official and common language of Québec September 28, 2021.

QCGN HOLDS COMMUNITY CONSULTATION ON BILL 96

Because invitations to the National Assembly’s parliamentary hearings were so limited, the QCGN carried out a parallel community consultation on Bill 96. The QCGN’s hearings were a resounding success with more than three dozen groups and individuals presenting their concerns and recommendations about the legislation. View their testimony on QCGN’s YouTube channel and click on the names of groups and individuals below to read their submissions.

THE CHARTER OF THE FRENCH LANGUAGE

The Charter of the French Language was enacted by the Parti Québécois government in 1977 to promote the primacy of the French language. Provisions of the Charter, commonly known as Bill 101, regulate government, commerce, business, education, and the courts.  Access to English-language schools is restricted to children with a parent who attended elementary school in English. The Charter also requires the exclusive use of French on outdoor signs and in advertising. Businesses with 100 employees or more require a francization program.

Earlier, in 1974, the Liberal government legislated Bill 22, the Official Language Act. It proclaimed French as Quebec’s official language in every sector of activity of the province. The right to go to primary and secondary school in English was restricted to students able to prove, through written exams, that they had a strong level of English.

The Charter was challenged before the courts shortly after its adoption. Several amendments followed. Despite these changes, thousands of English-speaking Quebecers no longer felt welcome and left the province. The percentage of the Quebec population with whose first official language spoken was English plummeted – from 16.5 per cent in 1971 to 13.4 per cent in 2011.

Today, Quebec’s English-speaking community widely acknowledges the need to protect French. However, the QCGN strongly believes that such protection can be achieved while respecting the institutions of the English-speaking community, which serve all Quebecers in French and English.

This approach is exemplified in the Charter of the French Language, in the way it allows the use of languages other than French in a number of circumstances, including for reasons of health and public safety. The Charter also permits designated municipalities, school boards, and health and social service institutions to provide services in English and other languages. (See list of recognized organizations – In French only).

Overzealous application of Charter is at the root of our concerns, past, present, and future. Given its central place in Quebec life, the Charter needs to be updated from time to time. English-speaking Quebec welcomes the opportunity to add its constructive voice to the coming review.

From the perspective of English-speaking Quebec, a revised Charter of the French language must possess the following key features:

  • allow English mother tongue Canadian citizens to send their children to English schools.
  • enact a universal right for Quebec residents to receive French language instruction free of charge.

Quebec’s economic future relies on attracting and retaining newcomers, and integrating these people into a society whose public language is French. English-speaking Quebecers and multi-lingual newcomers are not ‘enemies’. We are fellow citizens and allies. This is the spirit in which reforms to the Charter of the French Language should be approached.

The QCGN notes that English-speaking Quebecers invented French immersion teaching and spread this innovation to the rest of Canada. English-speaking Quebecers are Canada’s most bilingual English-speaking cohort. Young English-speaking Quebecers demand access to better French language training that will prepare them for Quebec’s French-speaking workplace. Young Francophones are seeking opportunities to learn and work in English, so they can actively participate in the global economy for the benefit of all Quebecers.

The process chosen to amend the Charter of the French Language will prove critical. Changes to this legal cornerstone of modern Quebec must be carried out only after extensive, open, and meaningful consultation with all Quebecers. We call on the Minister Responsible for the French Language to ensure a transparent and inclusive approach.

THE FEDERAL GOVERNMENT’S PROPOSAL TO MODERNIZE THE OFFICIAL LANGUAGES ACT

On February 19, Official Languages Minister Mélanie Joly released her government’s plan to modernize  Canada’s approach to official languages a reform paper entitled English and French: Towards a substantive equality of official languages in Canada.

The Government’s proposals to achieve substantive equality of official languages in Canada represents a fundamental shift in the federal commitment to official languages. It seeks to recognize French as an official and minority language in Canada. It seeks to acknowledge the linguistic dynamics of individual provinces and pursues the notion that French is in need of special protection in Canada, and Quebec.

The QCGN is wary of proposals to extend French-language requirements to federally regulated businesses in Quebec. We insist that the government ensure that English consumers and workers be able to communicate with these businesses in the official language of their choice. The federal government cannot ignore 1.1 million English-speaking Quebecers while extending new language rights to these enterprises.

The effects of the language used in the proposal if transferred to federal legislation on the future interpretation of language rights by the Courts is unknown, and this ought to be of great concern, QCGN told the House of Commons’ Standing Committee on Official Languages examining the Government of Canada’s proposed reforms on February 25. We told the committee that this could prove to be the single most important issue arising from the Government of Canada’s proposals. This is new ground, and, at first blush, appears to imperil the rights of English-speaking Quebecers down the road. View our appearance on ParlVu.

The QCGN is also very disappointed that Minister Joly’s proposals did not address our community’s long-standing and well-known challenges of gaining employment in the federal civil service in Quebec.

The QCGN was pleased to see that Minister Joly reaffirmed the Government of Canada’s continued leadership on official languages. We also support proposals to strengthen the role of Treasury Board in the coordination of the Official Languages Act; to expand the powers of the Commissioner of Official Languages to ensure compliance; and to transfer the Court Challenges Program into the Act.

Read QCGN’s press release and subsequent opinion piece in The Montreal Gazette.  Also view coverage on CTV Montreal and Global Montreal that includes interviews with QCGN Vice-President Kevin Shaar and coverage by The Montreal Gazette, here and here. Also read The Gazette’s editorial and Robert Libman’s column.

QUEBEC’S POSITION ON THE MODERNISATION OF THE OFFICIAL LANGUAGES ACT

The Official Languages Act (OLA) is a quasi-constitutional statute that implements federal constitutional official language obligations under the Charter of Rights and Freedoms and the Constitution Act, 1867.

The Act ensures the equality of French and English in the workings of the Canadian and “support[s] the development of English and French linguistic minority communities.”

The Government of Quebec’s orientations to modernize the OLA include:

  • That an asymmetric approach towards Canada’s official languages be formalized in the OLA.
  • That the Charter of the French Languagetrump the OLA in cases of conflicts.
  • That linguistic clausesprotecting federal resources transferred to support Canada’s official languages become non-binding.
  • That it be granted exclusive jurisdictionover language rights on its territory.

Quebec’s proposal belies a fundamental misunderstanding of the history, purpose, and application of the OLA. Contrary to Quebec’s position, the OLA:

  • Respects French in Quebec. There is no social science or empirical evidence to suggest that in the limited circumstances imposed by law and regulation, the provision of services in English in Quebec, or the rights of federal employees to work in English threatens French in Quebec.
  • Respects provincial jurisdiction. The Government of Quebec has brought forth no evidence of the contrary and has never challenged the application of the OLA in court.
  • Does not interfere with the rights to work in Frenchin Quebec.

Substantive equality requires that the OLA be implemented in a way that takes into account the actual circumstances of individual official language minority communities. The Quebec Community groups Network and our sister organization in French Canada, the Fédération des communautés francophones et acadienne (FCFA), support this approach.

Quebec’s proposal is constitutionally problematic because it requires reopening the Constitution.

It takes direct aim at the division of powers contained in the Constitution Act, 1867, seeking to extend Quebec’s legislative jurisdiction and ignoring Canada’s federal structure. It also disregards that Parliament cannot undermine the equality of status and use of English and French in Quebec within areas of federal jurisdiction.

THE OFFICIAL LANGUAGES ACT

Canada’s Official Languages Act, which turned 50 in 2020, is the only language-rights legislation that protects the interests of English-speaking Quebecers as a community. It sets out quasi-Constitutional rights for English-speaking Quebecers, including the right to access federal services in English; representation of English speakers within the Canadian government; and the right to work in English in the federal public service.

The Act also supports the development of English and French linguistic minority communities and advances the equal status and use of English and French. Moreover, it provides the framework for much-needed financial support for our community’s institutions and networks in a variety of sectors including education, immigration, justice, and health.

From the perspective of English-speaking Quebec, a modernized Act must possess the following key features:

As in the current Act, the central guiding principle must be the equality of status of English and French. There can be no separate status or approach for each language. Further, the Act must categorically guarantee this equality of status in all institutions which are subject to it across Canada.

Two additional key features must also animate the Act:

  • Substantive Equality: In its implementation, the Act must enable adaptation to the specific contexts and needs of the different official language minority communities.
  • Capacity, Consultation, and Representation: The Act should provide for robust, mandatory, and properly resourced consultation at all levels, including a formal mechanism for consultation at the national level.

Further, a modernized Act should:

Guarantee equity in services, language of work, and participation in the public service

  • Strive for coherence between Parts IV (services), V (language of work) and VI (participation);
  • Reframe Part VI to ensure that English speakers are fairly represented in federal institutions in Quebec;
  • Ensure that services in both languages are of substantively equal quality;
  • Update and broaden the language of work obligations;
  • Support the administration of justice in both official languages (including removal of the bilingualism exception for judges of the Supreme Court of Canada);
  • Consider extending the application of Parts IV, V, and VI of the Act to all federally regulated private enterprises.

Enhance the vitality of minority language communities

  • Include clear definitions of “positive measure”, “enhancing the vitality of”, and “assisting in the development of” official language minority communities;
  • Provide clearer lines of accountability for the obligations set out in Part VII;
  • Require regulations to implement Part VII;
  • Place strict transparency mechanisms in the Act to account for official languages investments;
  • Create official languages obligations attached to all activities funded by federal resources;
  • Require that all federal-provincial/territorial agreements be made in both official languages and be equally authoritative.

Provide for effective implementation

  • Central accountability for application of the entire Act;
  • Mandatory and robust consultation with official language minority communities, including a clear duty to consult, a definition of consultation, a duty to provide resources and build capacity to consult, a formal National Advisory Council, and a declaration that membership of parliamentary official languages committees should reflect the composition of official language minority communities;
  • Enhanced and focused role of the Commissioner of Official Languages;
  • Administrative tribunal with the power to sanction;
  • Regular periodic review of the Act and Regulations.

“The Official Languages Act is a significant legislative response to the obligation imposed by the Constitution of Canada in respect of bilingualism in Canada. The preamble to the Act refers expressly to the duties set out in the Constitution. It cites the equality of status of English and French as to their use in the institutions of the Parliament and government of Canada and the guarantee of full and equal access in both languages to Parliament and to the laws of Canada and the courts. In addition, the preamble states that the Constitution provides for guarantees relating to the right of any member of the public to communicate with and receive services from any institution of the Parliament or government of Canada in English and French. The fact that the Official Languages Act is a legislative measure taken in order to fulfil the constitutional duty in respect of bilingualism is not in doubt.”

(Lavigne v. Canada (Office of the Commissioner of Official Languages), [2002] 2 SCR 773 at 21)

“The promotion and protection of French should be done in “….a spirit of fairness and open-mindedness, respectful of the institutions of the English-speaking community of Québec, and respectful of the ethnic minorities, whose valuable contribution to the development of Québec it readily acknowledges.”

Charte de la langue française

WHAT WE EXPECT FROM OUR GOVERNMENT PARTNERS

The Government of Quebec must:​

  • Acknowledge Quebec’s English-speaking community as a dynamic and vibrant contributor to Quebec society.
  • Recognize that as an open, modern, and progressive society, Quebec has a responsibility to respect official language minority community and other minorities.
  • Ensure that measures protecting and promoting the French language do not supress the rights –or diminish the vitality – of Quebec’s English-speaking community.

The Government of Canada must:

  • Recognize that Official Language Minority Communities, including the English-speaking community of Quebec, continue to be vulnerable.
  • Unequivocally support linguistic duality as a pillar of our country.
  • Ensure the equality of language rights and obligations in all areas of federal jurisdiction across Canada.
  • Exercise strong leadership in protecting and promoting Official Language Minority Communities across Canada.

POLICY MATTERS BLOG

September 18, 2021
THE RULE OF LAW

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…

Read more

September 14, 2021
WHAT IS PARLIAMENTARY SOVEREIGNTY?

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.

Read more

LINKS TO ADDITIONAL READING AND RESOURCES

To provide a deeper look at the Official Languages Act, the QCGN worked with the Association for Canadian Studies (ACS) to prepare a special issue of Canadian Identities entitled Shifting Landscapes: English-speaking Quebec and the Official Languages Act. We also prepared an infographic on Quebec’s English-speaking Communities and Official Languages. Furthermore we recommend ACS’s Winter 2019 issue of Canadian Issues dedicated to the Official Languages Act entitled Linguistic Duality De jure and de facto. Click on the thumbnails below to download copies of these documents. You can also obtain hard copies of them by contacting Rita Legault, our Director of Communications and Public Relations, at rita.legault@qcgn.ca.

TAKE ACTION

TELL YOUR ELECTED OFFICIALS

Tell your elected representatives that you disagree with Bill 96. The QCGN’s no2notwithstanding platform will automatically generate and send a letter to Premier Francois Legault, Language Minister Simon Jolin-Barrette, your MNA, and your MP.

SHARE YOUR OPINION

The provincial government  is holding public hearings on Bill 96 at the National Assembly. However, it excluded many organizations representing Quebecers, notably many from our community. Submissions from individual Quebecers will help send a powerful message to the committee.

You can share your opinion with the National Assembly’s Committee on Culture and Education by clicking on Comment on this Mandate in the right–hand column. Please send a copy of your submission to us at info@qcgn.ca.