Why francophone Quebeckers should worry about Bill 96

Open this photo in gallery:

Amid the controversial language provisions in Quebec’s Bill 96, there is a measure that should stand out for other reasons. It is a broad power to search through Quebeckers’ computers, or phones. And it has been bulletproofed so judges don’t have as much purview to limit abuses.

It’s worth noting this, too: Quebec Premier François Legault’s Coalition Avenir Québec government didn’t just exempt the bill from Canada’s Charter of Rights and Freedoms, including the guarantee against unreasonable search and seizure. It also chose to override Quebec’s own charter of human rights and freedoms, including its protections for privacy.

So for a moment, let’s put aside questions about minority rights or language laws – important as those things are – to recognize there is something else going on in Bill 96.

It’s something that should worry a francophone Quebecker as much as any anglo: Mr. Legault’s government believes it should be able to make laws that are protected from judicial review.

And that isn’t limited to language, or culture, even if in this case it is tucked into a language law.

In Bill 96, Mr. Legault and his language minister, Simon Jolin-Barrette, have created a surprisingly wide inspection power.

It gives the Office québécoise de la langue française the power to enter any building other than a “dwelling house” where there are activities governed by the language law, or where documents or property related to it “may be held,” to get information.

The inspectors have the power to “cause any person present who has access to any computer, equipment or other thing that is on the premises to use it to access data contained in an electronic device, computer system, or other medium or to verify, examine, process, copy or print out such data …”

That is a lot of power to go poking through someone’s computer or iPhone. The language law covers things as ubiquitous as work, so it can be used in a lot of buildings. Inspectors can, according to Bill 96, go looking in the computer or phone of anyone who happens to be there.

“The language police have been given more power than the regular police,” said University of Montreal law professor Stéphane Beaulac. He sees these inspection provisions as “overreach.”

Mr. Legault’s government used the “notwithstanding clause” in the Charter of Rights to exempt the law from protections of basic rights in the Charter, including the guarantee against unreasonable search and seizure.

You might think that could be a nationalist political statement about Quebec’s authority – René Lévesque’s Parti Québécois government routinely applied the notwithstanding clause to legislation after the Constitution was repatriated over its objections in 1982.

But it is obviously not just that, because Mr. Legault’s government also chose to override 38 sections of Quebec’s own rights charter, including the right to privacy.

No, this is another kind of statement: Mr. Legault’s CAQ appears to believe that the legislature should be able to pass laws that are above the courts. It also used an override in Bill 21, the popular but controversial secularism bill that bars many public servants from wearing religious symbols. Bill 96 includes a reference to parliamentary sovereignty, the notion that the legislature’s laws should be beyond the reach of courts.

Many Quebeckers do believe that the state should have the power to protect language and culture, and they have for decades been willing to see Charter guarantees of freedom of expression suspended for laws that are supposed to do that.

But such broad provisions to access devices aren’t necessary for protecting the French language. Even if they were, they should be subject to careful limits, and robust judicial oversight – instead, Mr. Legault’s government has disabled some of the safeties.

Judges will still have some power to apply common-law principles of the rule of law that existed before those rights charters, which presumably could limit the purview of inspectors to access computers. But those limits will be more modest and still to be determined in a court challenge. Before the Charter of Rights and Freedoms, illegally obtained evidence was sometimes used in court.

One thing we know from history is that when there aren’t strong checks, state actors tend to abuse search powers, under governments left, right, or centre. Any government that ignores that is committing a reckless act of hubris. And Mr. Legault and his CAQ make it sound like they believe that limiting the role of the courts in reviewing the infringement of rights is no big deal.

Quebeckers should worry about where that can lead.

For subscribers: Get exclusive political news and analysis by signing up for the Politics Briefing.