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Bill 96 Challenged in Court

New provisions for French language use will impact anglophone access to justice.

This past month, Doug Mitchell, along with a team of lawyers, challenged Bill 96 as being unconstitutional. Justice Chantal Corriveau heard their arguments and granted a stay on two sections of Bill 96. The stay, which is a legal pause, applies to two sections of the Bill: Section 9 and Section 208.6. 

Adopted in May 2022 by Quebec’s National Assembly, Bill 96 is the province’s legislative effort to affirm French as the only official language of Quebec. It sets new requirements for the use of the French language in court proceedings, education, healthcare, and other sectors. 

Éric Bélanger, a Professor of Political Science at McGill University, explained the logic behind the Bill in an interview with the Daily. “In general terms, there is the need to reinforce the language legislation in place due to the changing social fabric of Quebec. As the latest data from the Canadian Census revealed last month, the prominence of French in Quebec has been slowly but surely eroding over the past two decades.” He described that the government of Quebec could not just stand by as the French language declined. Bélanger also explained the potential impacts that the Bill could have on anglophones and allophones. “Most non-francophone communities are likely to face greater constraints integrating into Quebec society, especially given the relatively short amount of time imposed by the government to comply with the Bill’s provisions,” he said.

While the Bill still allows pleas in English, Section 9 outlines that those attending court must attach a French translation prepared by a certified translator. In the application for judicial review, Mitchell argues that this places an even higher cost for those in court, causing the expenses to outweigh potential benefits and deterring people from seeking justice. The lawyers also argued that it was unconstitutional to be forced to access the court using both English and French, instead of either of the official languages. 

The lawyers  cited further concerns in Section 54.c over many regions of Quebec having a lack of certified legal translators, something which they argued will cause unfair legal delays. In cases that require urgency, French must be used to avoid these delays, therefore removing the option to litigate in English. The lawyers thus argued that these provisions severely limit the ability of anglophone people in Quebec from accessing justice. Citing  Section 133 of the Constitution Act  (1867) – which guarantees access to courts in English and French –they concluded that the provision which effectively requires legal procedures to be entirely in French is unconstitutional and violates the rights of Canadians. Justice Corriveau agreed that the conditions were met, and chose to suspend the aforementioned sections of the bill until the case could be heard by the Superior Court in November. 

In an official press release, the Mohawk Council of Kahnawà:ke stated that “it is pleased with a Quebec Superior Court Judge’s decision to suspend two provisions of Bill 96.” As a primarily English speaking community, the Kahnawà:ke would be negatively impacted by these regulations. Indigenous people are already overrepresented in the Canadian penal system, so a law limiting language use would potentially pose more barriers to justice.

Human rights lawyer  Julius Grey, has identified several other concerns with the Bill. In order to ensure that documents are actually in French, the Office Québécois de la Langue Française potentially has the right to search private documents that may be protected by attorney-client privilege. Grey highlighted this idea in his upcoming legal challenge to the Bill, arguing that these new regulations disadvantage people who have been charged criminally. Grey further describes that without the requirement for judges to be bilingual, anglophone participants may not be able to participate fully in the trial, as they may not be able to understand the general court proceedings nor be able to defend themselves adequately. 

When asked about the approximately 150 business leaders who have requested for the application of the Bill to be suspended, Quebec Premier Francois Legault explained in a press conference that there is a three year transition period built-in to the bill. He also highlighted the importance of maintaining French in Quebec businesses: “We have to be careful about the language of the people working.”

In the same press conference, a reporter questioned the necessity of “asking immigrants to learn French within six months.” Legault explained that the system doesn’t force citizens to learn French, it merely makes them access government services in the official language. He stated “most of the governments in the world, they start sending information in the language of the country. What we say is that we will make an exception for six months.” 

However, future challenges to the Bill may be difficult, as Bill 96 proactively includes the notwithstanding clause to guard against arguments saying it does not follow the constitution. Dr. Dave Guénette, of the McGill Faculty of Law, explained in a Q&A session with the Centre for Constitutional Studies: “It is widely known that the notwithstanding clause can be used preemptively and that doing so does not require any form of justification.” “It is important to recall that the notwithstanding clause, in its current form, was part of the compromise that made possible the constitutional agreement of November 1981.” However, Guénette cautioned against a potential political price to pay: “Overriding fundamental rights and freedoms is a major political decision and should be done only when it is an absolute necessity.”