Obviously, the An Act respecting the official and common language of Quebec, Frenchwill generate several interpretative debates, both within the public and in the courts.
Posted at 6:00 p.m.
I agree that the interpretation of statutes does not normally arouse keen interest among lay people. Nevertheless, these debates will touch on issues relevant to all of Quebec society. For example, the courts will have to clarify their role in relation to a legislator who sees them as an irritation, at best, and who cares little about fundamental rights. Moreover, these debates will lead to concrete human effects.
One question concerns the interpretation of the notwithstanding clause in the Canadian Charter of Rights and Freedoms. Although this mechanism emerged from a political compromise in the early 1980s, the fact remains that it is subject to interpretation by the courts like any element of the Constitution.
Controversial app
In these pages, Michel C. Auger has advanced the interpretation according to which the legislator can only resort to the derogation clause after having suffered a constitutional failure before the courts.1. Like other authors, Jean Leclair has suggested that the courts retain a residual power to declare the violation of fundamental rights by a law whose operation depends on the derogatory clause2.
It remains to be seen whether the Court of Appeal or the Supreme Court of Canada will accept the invitation, which was made to them in the case of Bill 21, to better define the use of this clause. The court then regretted the casual and inconsiderate use of this mechanism by the legislator.
Other questions will relate to the interpretation of the provisions of Law 96. Regardless of government assurances, whether press briefings or advertisements placed at public expense in newspapers, the application of this law will generate many controversies.
Consider the need to clarify the gray area between the obligation imposed on the civil administration to use the French language in an exemplary manner and the exception provided for when health requires it.
What will be the consequences for the health and social services sector?
We should also think of the extension of the inspection powers of the Office québécois de la langue française. Because of the use of the notwithstanding clause, these are no longer constrained by constitutional protections against unreasonable search or seizure. What place will the general principles of administrative law take, given that the legislator seems to have endorsed, beforehand, unreasonable and disproportionate practices?
More generally, does Law 96 deserve a broad and liberal interpretation or rather a narrow one, given that it makes an exception to fundamental rights?
Normally, the judiciary plays a complementary role to that of the legislator. The judges clarify or complete the legislative formulations, in the advancement of the avowed or inferred objectives of the latter. Sometimes judges correct mistakes made by legislative drafters, or even lessen contradictions. This function is part of the fundamental vocation of the courts to uphold the constitutional order, including the rule of law.
However, what happens when the legislator pursues an objective – in this case, the preservation and promotion of the French language – which is opposed to the protection of fundamental rights and freedoms? Is the same generous and collaborative approach still appropriate?
The question is valid. According to a plausible approach, the judiciary would not be required to collaborate with the legislator when the latter violates fundamental rights. Certainly, judges should give effect to any law that is protected by the notwithstanding clause. Could they not, however, refrain from filling in the gaps in such a law or resolving its ambiguities? After all, Parliament’s use of the notwithstanding clause does not relieve the courts of their role as independent and impartial checks and balances in a liberal and democratic society.
As important as the promotion of the French language is, the adoption of Bill 96 requires serious reflection regarding the roles of the three branches of government and the type of society in which we would like to live together.