OPINION: Unanswered questions remain on Bill 96

Submitted by Marlene Jennings, president, Quebec Community Groups Network

Sept. 21 marked the start of hearings of the National Assembly committee on culture and education on Bill 96, An Act respecting French, the official and common language of Québec. This represents a critical part of our democratic process, even though regrettably only a very limited number of Quebecers have been asked to share their views on what is the greatest overhaul to Quebec’s legal order since the Quiet Revolution.

Bill 96 is a wide-ranging and complex piece of legislation. It represents a significant overhaul of Quebec’s legal system. It amends the Charter of the French Language (Bill 101), 24 other provincial statutes, one regulation, and the Constitution Act, 1867. As the QCGN has stated, Bill 96 calls for the most sweeping use of human rights overrides in Quebec’s history, ousting the application of both the Quebec Charter of Rights and Freedoms and the Canadian Charter. It effectively creates a Charter-free zone with respect to a wide range of interactions between individuals and the state in Quebec. It touches on commerce, employment, education, access to public services, expression in a range of contexts, and the operation of the legal system. Where rights that would otherwise be protected are infringed upon, the courts will not be able to review and remedy the rights-violating conduct under either the Canadian or Quebec Charter.

This bill is about our values and the Quebec and Canada we want to live in. The Quebec government is proposing to redefine the social contract we have developed over the past many decades and the relationship between Quebec and Canada. This is of concern to all Quebecers and deserves to be fully debated and discussed. In considering the legislation, it is critical that the diverse voices of Quebec are heard and taken into account. We need to take the time to build a consensus on the type of society we wish to live in. We continue to urge you, Minister Simon Jolin-Barrette, to prolong the work of the committee so that more Quebecers have the opportunity to participate and engage in this important public policy debate.

In light of the government’s decision to restrict participation at the hearings to about 50 groups and individuals, the QCGN sponsored its own hearings from Sept. 9 to 17, bringing together dozens of Quebecers and providing them with a forum to share their views on Bill 96. We heard from a wide range of Quebecers, from stakeholders in health and social services, representatives from the arts and culture community, and entrepreneurs and business leaders, to the education sector, women’s rights groups and other underrepresented communities. We also received briefs from leading jurists and scholars including Gregory Borden and Azim Hussein of the Coalition Inclusion Québec, Michael Bergman, Pearl Eliadis, Julius Grey, Robert Leckey and representatives of the Lord Reading Law Society.

Minister Jolin-Barrette, I am sure that you will be encouraged to know that a broad consensus exists within Quebec’s English-speaking community in support of French as the common language of Quebecers. As eloquently stated by Christopher Neal of the Quebec Writers’ Federation: “Bill 96 is counterproductive in targeting English-speaking Quebecers who have proven themselves allies in learning, speaking and promoting French. Englishspeaking Quebecers invented French-immersion programs, now attended by half a million students across Canada. We share with them not only a love for the French language, but also a personal investment in assuring its survival.”

It is in this context that we urge you to set the stage by addressing the following fundamental questions:

Why is the Charter of the French Language being overhauled now, during a pandemic, when public attention is on health and the economy?

While it is clear that Bill 96 is upsetting the social peace around language that has endured in Quebec for several decades, no evidence has yet been presented on how the specific measures in this bill will improve the situation of French in Quebec. Why is this bill necessary? What aspects of the current Charter of the French Language are inadequate to protect the French language, and how does Bill 96 address these aspects?

Why is Quebec poised to depart both from its proud tradition of protecting human rights, and from the international human rights standards to which it has bound itself, by pre-emptively using the notwithstanding clause to override the Quebec and Canadian Charters of Rights and Freedoms?

Why is Quebec adding new executive powers to the Charter of the French Language, including new search and monitoring powers that will not be subject to the prohibition on unreasonable search and seizure found in both the Canadian and Quebec Charters?

Why is Bill 96 adding disclosure protections that will not be subject to protections of personal privacy and professional confidentiality?

Why is Bill 96 adding new sanctions and penalties that will not be subject to the prohibition against cruel and unusual punishment?

In an unprecedented legislative move, Bill 96 purports to amend the Constitution Act, 1867, which in turn raises many questions. More precisely, what principles will apply to the proposed text and what are the implications of the amendment, particularly with regard to Quebec’s English-speaking community?

Is Bill 96 restricting membership in Quebec’s English-speaking community to only those who have eligibility certificates to study in English? The questions we are posing are fundamental for ensuring Quebecers have a full understanding of the objectives of Bill 96, and your answers will help set a framework for a discussion on the Quebec we want to build together.

I wish to remind you that the QCGN’s Statement of Principles commits our organization to recognize French as the official language of Quebec. The current Charter of the French Language commits the National Assembly to pursuing the legislation’s objectives “in a spirit of fairness and open-mindedness, respectful of the institutions of the English-speaking community of Quebec, and respectful of the ethnic minorities, whose valuable contribution to the development of Quebec it readily acknowledges.” We hope to build on these guiding principles in support of an inclusive Quebec where French is the common language.