A ticking constitutional time bomb

Opinion

IS Canada sleepwalking past a ticking constitutional time bomb to avoid provoking a popular nationalist premier in Quebec, and whatever that might entail?

It seems so. Scant attention is being paid to a federal law titled Bill C-13, which is wending through the House of Commons. It’s an overdue update, first proposed in June 2021, to Canada’s Official Languages Act (OLA).

The OLA, a quasi-constitutional piece of legislation, confirms federal obligations to the nation’s official minority-language communities, both English and French, equally. At the Commons committee studying C-13 last December, Quebec Liberal MP Patricia Lattanzio described it as the bedrock of this country — a nation founded on two official languages.

Manitobans may recall that former NDP leader Tom Mulcair and lawyer Eric Maldoff, both of whom were then with the Quebec English-language-rights group Alliance Quebec, took on the task of translating Manitoba’s laws into French following a 1985 Supreme Court of Canada ruling.

Mr. Mulcair has been raising alarms for years since, arguing governments cannot ignore the Canadian Constitution’s insistence on the equivalency of English and French versions of the nation’s laws.

In a 2021 magazine article, he wrote: “The big deal is that once those unilateral constitutional amendments are in place, the Quebec attorney general might succeed where their predecessors had failed … (and) could point to the new sections as proof that Quebec can indeed adopt its legislation in French only and provide an English translation later on. That could negatively affect everyone’s language rights across Canada as other provinces such as Manitoba and New Brunswick could take note and follow suit.”

If passed as is, Bill C-13 would have profound effects on the interpretation of constitutional language rights. It would create a new law imposing French-only obligations in Quebec on federally regulated businesses such as banks, airlines and telecommunications, with virtually no protection for the rights of English-speaking citizens.

And it would open the door wide for those businesses to be subject to Quebec’s Charter of the French Language (Bill 101).

Herein lies the time bomb: the Quebec charter was amended by the government of Premier François Legault last year by Bill 96, which pre-emptively invokes the notwithstanding clause of the Canadian Constitution to shield itself from court challenges over Bill 96’s clear violations of fundamental rights and freedoms. One of those is a reduction in access to the law in English in Quebec.

The notwithstanding clause was the dealmaker for repatriating the Constitution in 1982. If Canada was to have an entrenched bill of fundamental rights protected by the courts, legislatures would get a safety valve: a clause that would allow them to override rulings they thought went too far. The clause was expected to be invoked in extremely rare circumstances.

But Quebec has used it liberally as a way to assert the parliamentary sovereignty of the National Assembly. In 2019, Quebec also invoked it in Bill 21, a law restricting public servants’ right to wear religious symbols such as hijabs or kippahs.

Ottawa’s response to this has been muted. While the attorney general has promised Ottawa would intervene when and if court challenges to Bills 21 and 96 make it to the Supreme Court, the general line from all three major federal parties is that these are matters for Quebecers to decide for themselves.

Which is why English-speaking Quebecers looked askance last fall when much federal outrage was expressed about the Ontario government’s threat to invoke the notwithstanding clause to suspend a union’s right to strike. The NDP and Liberals both summoned the courage to aggressively criticize that manoeuvre.

The prime minister said: “This is something all Canadians who value the freedoms, the rights, the opportunities that Canada gives them and gives us all, should be standing up to be very concerned about.”

Would that he had been so clear with respect to legislation in Quebec, and its implications for the rest of the country.

Addressing the Committee on Official Languages last month, Quebec Liberal MP Marc Garneau put it better: “We feel it would be a serious error on our part, as federal MPs on a federal committee examining a federal law, to leave free rein to Quebec to do whatever it wishes in matters of language within Quebec. We, as federal MPs, have a duty to all linguistic communities of Canada — all official-languages minority communities of Canada — including those who speak English in Quebec.”

As Lattanzio noted, amendments from Conservative and Bloc Québécois committee members would gut the bill’s references to the federal goal to protect linguistic minorities — including the provision of services to both French- and English-speaking minorities.

The ticking out of Ottawa is becoming louder and more insistent.

Eva Ludvig is president of the Quebec Community Groups Network. Former senator Joan Fraser sits on the board of the QCGN.