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Allan Rock is President Emeritus of the University of Ottawa and former Attorney General of Canada. Glenn O’Farrell is a business executive and corporate director.

Premier François Legault’s Bill 96 is just the most recent of efforts that trace back to Canada’s earliest days trying to preserve the French language on a continent that overwhelmingly speaks English. The legislation, which declares that ”French shall be the only official language of Quebec,” affects the use of French in the workplace, in business and in education. The proposals are controversial. The challenge is to balance measures that promote the use of French in Quebec with the rights of the Anglophone and Allophone linguistic minorities. Some critics have already charged that the proposals go too far, while others claim they do not go far enough.

We leave aside the merits of the language provisions and focus instead on two aspects of Bill 96 that deserve attention in all of Canada – one for constructive reasons and the other for its corrosive effect on our democracy.

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The first has to do with amendments to the Quebec constitution: The declaration that Quebec is “a nation” and statement that French is the official and dominant language. In adopting those amendments, the National Assembly would be acting in a lawful and appropriate manner. Lawful, because the Canadian Constitution expressly provides that “the legislature of each province may exclusively make laws amending the constitution of the province.” Appropriate, because the amendments surely do no more than reflect facts on the ground. Policy, practice and precedent – reality – have already made French the de-facto official language of Quebec. And 15 years ago, the House of Commons adopted a resolution declaring Quebec a nation, with a vote of 265-16 and supporters from every party in the Commons.

The constructive feature that makes these proposed amendments worthy of national attention is that they show Quebec that changes it desires can be brought about within Confederation.

Quebec has had an uneasy relationship with Canada’s Constitution, and particularly with the Constitution Act 1982, which contains the Charter of Rights and Freedoms and the constitutional amending formula. There was no official signing. The notion persists about Quebec’s “exclusion.” Efforts at reform, including the Meech Lake and Charlottetown accords, failed. The result? Many in Quebec regard the Constitution as a political straitjacket from which there is neither relief nor escape.

Thus, Bill 96 provides an opportunity to demonstrate that the Constitution enables changes that both recognize Quebec’s linguistic reality, and also reflects a Parliamentary resolution adopted overwhelmingly years ago. It shows that Confederation is supple and flexible enough to accommodate the aspirations of its partners. And it demonstrates that progressive constitutional change need not mean years of fruitless debate, but instead can be made by any province in cases such as this.

But there is a second and ominous aspect to Bill 96 that should attract concern across Canada. The bill invokes the “notwithstanding” provisions of both the federal and provincial Charters, which would exempt the changes in language laws from judicial scrutiny for at least five years. In practice, that would mean denying access to the courts to redress alleged infringement of fundamental rights and freedoms.

Invoking the notwithstanding clause represents the “nuclear option” in legislative drafting. By placing parts of Bill 96 beyond independent review by the courts, the Legault government is not only departing from core values of liberal democracy, but also signalling a lack of confidence in the legality of its own measures. Rather than doing the hard work involved with seeking the careful balance of linguistic rights that Quebec’s social contract requires, the government proposes simply doing as it pleases and then drawing a curtain across the scene, so any overreach cannot be addressed.

Prime Minister Justin Trudeau was quick to express support for the constitutional amendments proposed in Bill 96, anxious to show that the Constitution can work. Good as far as it goes. But the Prime Minister ought also to have condemned outright the use of the notwithstanding clause in the proposed legislation, warning of the bill’s compounding effect on the damaging precedent regrettably already set by its use in Quebec’s religious-symbols legislation. Indeed, he could have conditioned his government’s support for the constitutional amendments on the removal of the clause. There is still time to do so.

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Canada’s Charter will soon mark its 40th anniversary. It is admired around the world as a model for so artfully balancing individual freedoms with collective interests. Four decades of experience have shown, however, that recourse to the courts is essential to protect the democratic values enshrined in the Charter. Denying that recourse by invoking the notwithstanding clause weakens the legitimacy of Bill 96 and calls into question the commitment of the Legault government to those very values.

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