Quebec’s most ambitious language-law overhaul in nearly half a century is sparking fresh concern that expanded search and seizure powers for language inspectors could lead to baseless probes that compromise confidential business information.
Under the province’s proposed Bill 96, Quebec’s language enforcement agency, the Office québécois de la langue française (OQLF), would receive enhanced investigative powers. The bill would allow inspectors to go “at any reasonable hour” into places where they believe language infringements might have taken place, whereas current law allows them to do so only during business hours. And the range of places they can enter would be widened. Under current law, they can access “any place open to the public.” Bill 96 would expand their purview to “any place, other than a dwelling.”
Many corporate leaders in the province have expressed support for reinforcing French, even as they warn that the new legislation could saddle companies with additional costs and complicate their hiring efforts at a time when Canada faces an acute labour shortage. They have also raised alarms over the potential intrusiveness of the new inspection powers.
“We worry that employers will face accusations too quickly, that there will be no presumption of innocence,” said Karl Blackburn, head of the Conseil du Patronat, a group that represents about 70,000 private and parapublic employers in Quebec, including major banks and manufacturers. There’s a danger the OQLF will go “fishing for offenders,” he added.
While inside a business, language inspectors would have the right to take photos, to order anyone present to access data on any computer or electronic device on site, and to require the production of “any information” or document needed for their investigation. Inspectors would not be required to say why they are searching, or to explain the scope of their search, according to an analysis by the Quebec Community Groups Network, an umbrella group representing anglophone organizations.
These proposed new powers would allow language inspectors to make very broad and invasive searches, according to Marion Sandilands, a lawyer for the network. The proposed legislation does not include any requirement for a search to be justified by “reasonable grounds,” nor do inspectors need to obtain preauthorization from a judge. Restrictions of those kinds should ideally accompany such sweeping search powers, Ms. Sandilands said in an e-mail.
Language inspections already proceed without judicial authorization or reasonable-grounds requirements, but people and businesses may have been less concerned about this in the past because the searches happened only in public places and during business hours, said Enda Wong, a lawyer with McMillan LLP in Montreal.
“Now, they would be more concerned, since in theory a private office with confidential information can be inspected,” she said.
Officials with the Chambre des notaires, which represents notaries in the province, have questioned whether language inspectors would require production of privileged client information that is protected under professional secrecy statutes.
Premier François Legault’s government introduced Bill 96 in May in a bid to correct a language pendulum it says is swinging too far away from the use and adoption of French in daily life. The new legislation proposes measures to make French “markedly predominant” in commercial signage, and compels companies with 25 to 49 employees to meet French-language certification obligations under the same stringent standards that apply to companies with 50 to 99 employees.
The language push highlights the ruling Coalition Avenir Québec party’s belief that the retreat of the French language could one day be an existential matter for French Canadians. The bill is now going through committee hearings in Quebec City, a process during which select groups affected by the legislation are invited to present their views to lawmakers.
“We oppose provisions that would increase the powers of the Office de la langue française, particularly that it be empowered to conduct searches and seizures without a judicial warrant,” Quebec Community Groups Network president Marlene Jennings told the committee. “The provisions in the bill would also make it more challenging to do business in Quebec. In a time of global competition for investment, why erect new barriers?”
Ginette Galarneau, president of the OQLF, told the committee that the office has built a “privileged relationship” with Quebec businesses over the years. She added that the office’s approach to ensuring language compliance is one of supporting organizations to make any required changes, rather than seeking to punish them. She said the OQLF would put the proposed changes in place “in a harmonious way,” and that staff would receive new training to ensure a “uniform and coherent” application of the law.
The bill would also give the language watchdog new compliance powers. Currently, the OQLF has no jurisdiction to directly enforce the Charter of the French Language. When it wants a fine imposed, it must refer the file to the Director of Criminal and Penal Prosecutions, according to an analysis by Alexandre Fallon at the law firm Osler, Hoskin & Harcourt LLP. The new rules would change this by giving the OQLF the right to issue orders, and to seek the enforcement of those orders before the Superior Court of Quebec.
It is widely acknowledged that the OQLF serves a purpose as a guardian and promoter of the French language in Quebec. But the office’s own overzealousness in recent years has sometimes damaged its reputation and public trust. For example, the agency drew global ridicule in 2013 when it tried to crack down on a Montreal restaurant’s failure to translate the names of well-known Italian food items such as “pasta” into French on its menu.
The proposed legislation invokes the notwithstanding clause of the Canadian Constitution to shield itself from court challenge. The Legault government has said a three-year grace period will apply after the new rules take effect.
Some legal experts take a more reassuring view of the OQLF’s expanded powers, saying checks against the office would remain in place.
While the notwithstanding clause can protect the validity of a law, it has its limits. It doesn’t protect any abusive acts that might result from the law, constitutional law expert André Binette told the committee. For that reason, if someone believed language inspectors were misusing their new-found authority, that person would be able to make their case in court, he said.
“These limits may provide some reassurance to people who are worried about the scope of these inspection powers,” Mr. Binette said. Inspections that use unreasonable or disproportionate means – for example, by requiring that a company suspected of infringing language laws open all its accounting records or corporate and personal computers – can be challenged under Canadian and Quebec charter-of-rights protections, he said.
The Conseil du Patronat has said the government isn’t addressing a much deeper issue: that French is in trouble among francophones.
Mr. Blackburn cited research from the Fondation pour l’alphabétisation, which shows 53 per cent of the Quebec population between the ages of 18 and 64 is illiterate or functionally illiterate, meaning they either can’t read or they have trouble understanding what they read.
“That is really a national catastrophe,” Mr. Blackburn said. Simply closing the literacy gap with Ontario would add about $5-billion annually to Quebec’s gross domestic product, because improving reading comprehension boosts personal income levels and the quality of jobs, he said.