François Legault’s government has introduced sweeping changes to provincial language laws that would amend the Canadian Constitution to recognize Quebec as a nation and French as its only official and common language.
The surprise constitutional initiative, contained in draft legislation, would try to use a section of the Constitution that allows provinces to make changes unilaterally if they have no effect on other provinces or the foundation of federalism.
The constitutional change is only a few lines of Bill 96, a 100-page draft bill that tightens a long list of clauses in Quebec language laws and regulations with a stated aim to protect and promote French. The bill also invokes the notwithstanding clause of the Canadian Constitution to shield it in advance from court challenge.
Deputy Prime Minister Chrystia Freeland and Mélanie Joly, Minister of Official Languages, said they will study Quebec’s language plan but did not say if they would endorse the constitutional amendment. The Quebec proposal would have more teeth with Ottawa’s support, constitutional experts say.
Mr. Legault said he sent a letter to Prime Minister Justin Trudeau and the provincial premiers Thursday explaining his plan and reassuring them that it will not touch other provinces or cause fundamental change to the federation – two conditions for making constitutional amendments without them.
“This will take away nothing from other provinces but is fundamental to us,” Mr. Legault said. “The French language will always be vulnerable in Quebec, in North America. We must do more and we explain why we are doing more.”
Legal scholars are divided on how far Quebec can go with such a unilateral amendment without Parliament’s approval.
Bruce Ryder, a constitutional law professor at Osgoode Hall Law School, says Quebec cannot enshrine the language portion of the plan alone. “It should be removed,” he said.
Quebec is relying on Section 45 of the Constitution Act, which allows provinces to make unilateral amendments on matters that concern only them.
Prof. Ryder said enshrining Quebec’s status as a nation may work because it is only of concern to the people of Quebec. The House of Commons declared Quebec a nation in 2006 under a motion tabled by then-prime minister Stephen Harper, but it was not part of the Constitution.
On language, however, the Constitution is explicit that the status of French and English in Quebec would require resolutions from both the Quebec National Assembly and Parliament, Prof. Ryder said, under rules found in Section 43 of the Constitution. The same rules would apply to any province.
“It would not be just a symbolic gesture,” he said. “English and French language rights are of concern to the nation as a whole.”
Benoît Pelletier, a constitutional lawyer at the University of Ottawa and former Quebec Liberal cabinet minister, said Quebec can unilaterally modify the Constitution to recognize French as an official language in Quebec.
He argued that the proposal would not harm any other province, would not undermine the compromise that created the federation, nor harm provincial-federal relations or the structure of Canadian federalism.
But Prof. Pelletier said unilaterally declaring French as Quebec’s only official language may have more symbolic clout, at least at first.
“It remains to be seen how far-reaching courts would use it to interpret law. It might be the courts don’t use it as a constitutional principle,” he said. “It could be symbolic but extremely important, and could eventually be used by the courts in an interpretive manner.”
Prof. Pelletier added the proposed amendment would have more force if endorsed by the Trudeau government.
Prof. Ryder disputed that Quebec can change the Constitution in a strictly symbolic manner. “All constitutional provisions have an impact on the whole, no matter how they are adopted,” he said.
Quebec Justice Minister Simon Jolin-Barrette, the architect of the language law, made it clear that the province intends to go it alone. “It’s a unilateral modification of the Constitution,” Mr. Jolin-Barrette said.
“We are speaking within our own portion of the Canadian Constitution. It’s the part that belongs to us. We will define who we are in our own text.”
While the proposed Constitutional amendment promises to be the most contentious in the rest of Canada, the bulk of the draft legislation is dedicated to tightening a vast array of language rules, many of which are already in place.
Prof. Pelletier argues that none of the specific measures in the law are legally controversial enough to require the use of the notwithstanding clause to protect it from court challenge. Mr. Legault said he is using it anyway because his government has “the right and the duty to use the clause, especially when the foundation of our existence as a people in America is at stake.”
The draft legislation would establish both a minister and a commissioner of French and reinforce French language requirements in the bureaucracy, government agencies and workplaces.
It would boost teaching French to Quebeckers who want to improve their skills while requiring immigrants to interact with the government in French after six months in the country.
Quebec would impose quotas to require the English-language portion of the college system, known as CEGEPs, to leave space open for anglophones and cut space for other Quebeckers who have flocked to the English system in recent years.
The province would tighten commercial-sign rules already in place to require larger French text to accompany company trademarks in English. Mr. Legault used the example of Canadian Tire, which would now require French words describing the store to be more prominent than the logo.
The government would require businesses with 25 employees or more to make French the workplace language and reduce the number of jobs with a bilingual requirement. The previous threshold was 50 employees.
Quebec’s opposition Liberals were cautiously open to the law, saying many details remain to be ironed out.
“This draft legislation has many tentacles and will require the government to listen carefully and be open to changes,” said Quebec Liberal Leader Dominique Anglade. “It’s not just a law, but a societal project that we hope can bring people together.
“The devil is in the details.”
For some Quebec nationalists, the law did not go far enough. Parti Québécois Leader Paul St-Pierre Plamondon said the draft bill represents the “absolute minimum.” He wanted the government to restrict access to English CEGEPs to anglophones and select more immigrants who speak French.
He sees the constitutional manoeuvre as a symbolic move. “Reversing the decline of the French language requires concrete measures,” he said.
Protecting the French language is a perennial and important political and identity issue in Quebec, where statistics show use of the French language at home is in steady slow decline, particularly in Montreal.
However, the same statistics show that anglophones and people with other languages as a mother tongue are more likely to speak French than ever.
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