Montreal City Weblog

Kate 09:07 on 2022-05-15 Permalink Reply  

• mare 12:20 on 2022-05-15 Permalink

  Can (parts of) this law be legally challenged? Or is this democracy at work with yet another non-withstanding clause?

  Doctors only allowed to speak french to their patients, and endangering their health because of miscommunication) seems like it could be against their medical code of conduct. What has a higher prevalence?
  If people use French in the workplace someone can complain and as part of the investigation by the Office québécois de la langue française, confidential documents (medical, financial, trade secrets, etc) but also whole computer (systems) could be seized without a warrant.
  There are many companies/sectors in Quebec that are heavily subsidized (like Artificial Intelligence, Visual Effects, Games) and do ground breaking innovative things. I doubt they would like their patents to be in some government’s office closet. They often do have many foreign nationals working for them, often using software that hasn’t been translated into French. Very illegal.

  Should the companies move? Do we get another exodus and brain drain?

• Tim S. 13:07 on 2022-05-15 Permalink

  It’s really hard to get the message through that “French needs to be protected” does not mean that “any law is a good law”

• Kate 13:18 on 2022-05-15 Permalink

  mare, the Journal even covered how a rural area of Quebec has lost their horse veterinarian because she couldn’t pass the French test. It’s a microcosm of what’s been going on here for decades, a loss of expertise that’s felt to be worth it, if it “saves French.”

  If tech companies decide the terms of the law (warrantless search and seizure in their offices) are unacceptable, then too bad, so sorry to see you go.

  In general, Canada has been unwilling to challenge the use of the notwithstanding clause because they know it could spark a new wave of outright separatism. Our PQ governments have always known this, and Legault’s government is totally counting on this.

• PatrickC 16:52 on 2022-05-15 Permalink

  mare raises the issue of the notwithstanding clause. Does this insulate legislation from just the federal Charter, or does it also do so against Quebec’s own charter of rights?

• Kevin 17:10 on 2022-05-15 Permalink

  Legault altered Quebec’s Charter before passing Bill 21, demonstrating that Quebec’s charter is a meaningless document.

• Tim 22:18 on 2022-05-15 Permalink

  Kate, is there a challenge that can be done against the Notwithstanding clause? It is not that Canada is unwilling; I don’t think that anything can be actually be done. I think even the Supreme Court’s hands are tied.

• Tim 22:23 on 2022-05-15 Permalink

  The only mechanism that exists AFAIK is the 5 year expiration.

• JaneyB 09:40 on 2022-05-16 Permalink

  @Tim – we’re stuck with the Notwithstanding clause. The only option is a constitutional amendment. Considering it took the better part of 50 years of regular premiers meetings to get a formula that the provinces could tolerate (and I still think the agreement was more of an accident given the regular failure rate of previous conferences), it is unlikely that any constitutional amendments will be possible. Also, the willingness to tolerate the existing constitution (mostly the Charter part) is significantly due to the existence of that clause so…very unlikely. However, the SCC did strike down parts of Bill 101 that QC couldn’t get around with the Notwithstanding clause so…a tiny window for tiny elements there.

  My suspicion is that the search and seizure bit is just a legal offering to protect the meat of the Bill. There are many rules around that so I think the CAQ will lose on that but keep the rest and some politically useful indignation from the loss.

• H. John 12:59 on 2022-05-16 Permalink

  It’s difficult to comment on Bill 96 because it is so large and amends, in a major way, a number of laws (including the Civil Code of Quebec and the Quebec Charter of Human Rights and Freedoms).

  For example, Bill 96 s.136 amends Quebec’s Charter of Human Rights and Freedoms:

  136. Section 50 of the Charter is amended by adding the following paragraph at the end:
  “Moreover, the Charter shall not be so interpreted as to suppress or limit the enjoyment or exercise of any right intended to protect the French language conferred by the Charter of the French language (chapter C-11).”

  The Bill, in its current form, can certainly be challenged.

  The Quebec Bar Association, in its submission to the National Assembly committee studying the Bill, pointed out that many of the Bill’s provision are contrary to or in conflict with s. 133 of the Constitution Act of 1867 (a part that can not be overridden by the notwithstanding clause).

  They raised significant concern about the effect of the Bill on the administration of justice (see part 2 of their submission)

  https://www.barreau.qc.ca/media/2958/memoire-pl96.pdf

  Pearl Eliadis expands on other concerns:

  https://www.mcgill.ca/maxbellschool/article/the-overreach-of-bill-96

  While the notwithstanding clause has been used a number of times the courts have not yet had a final say on when or if it can be used, or what it means.

  Robert Leckey, McGill’s Dean of Law (and others) explain:

  https://policyoptions.irpp.org/magazines/may-2019/faulty-wisdom-notwithstanding-clause/

  The authors suggest that potentially discriminatory laws should be challenged for the benefit of clarity. Even if the court doesn’t strike down the law, a finding that it is discriminatory can be used in the court of public opinion to judge the government that passed it. Clearly an option limited to those with deep pockets, or financial support from others.

• Kate 15:29 on 2022-05-16 Permalink

  Thank you, H. John. Terrific links as always.