Bill 101 'constitutional curveball' puts Ottawa on the spot politically, experts say

Constitutional controversy over Bill 96 Lawyer Michael Bergman weighs in on the predicament federal and provincial parties will face over Quebec’s new proposed language law.

Montreal — One of Thursday’s updates to Quebec’s language laws puts federal lawmakers in a tight spot politically, experts say.

The update to Bill 101—a provincial law—includes a change to the Canadian constitution, a very unusual proposal that likely depends on getting Ottawa’s blessing.

But whether or not federal politicians give that blessing, a gauntlet has been thrown that they won’t easily be able to dodge, said lawyer Michael Bergman.

“This is going to put in our federal parties in a major predicament, because they’ve all agreed that French is in decline in Quebec,” he said Thursday.

“They will be hard-put to justify why French should not be the common language of Quebec. And it will take some courage for the federal leaders, each one of them, to say no.”

Quebec wants a new insertion into the constitution that would formally recognize, on a federal level, that Quebec is “a nation,” and that the common language of that nation, and province, is French.

“It theoretically is possible, if the federal parliament will agree to literally amend the constitution,” said Bergman.

“This bill is also, at least from a CAQ nationalist point of view, a brilliant piece of writing, because it puts the federal parties and the other provincial parties in a real bind,” he said.

“Because they’ve all agreed in advance that something has to be done.”

Aside from the constitutional change, the new bill includes several measures within the province's purview, including a strict cap on the number of spots at English-language CEGEPs, new demands on small Quebec businesses that include serving customers in French, and communicating more with immigrants in French.

It won’t be passed until the fall, after a long period of review, the government says.

A HOT-BUTTON SUBJECT, FEDERALLY

Protecting French has been on the radar of the federal government for more than two years, but it wasn’t always a political hot-button subject.

The Trudeau government began the latest review into language rights in 2019, and this winter it revealed the results of its review and a plan to modify the Official Languages Act.

But the issue seemed to get more political last summer, when the Conservative Party elected Erin O’Toole as its new leader, and O’Toole proceeded to forge a new relationship with Quebec’s premier, saying that issues of “Quebec identity” were “a priority” for him.

O’Toole also said that, if elected prime minister, he would support a different federal legal amendment that Quebec had suggested to strengthen French within the province.

About three months later, Prime Minister Justin Trudeau said he was looking at various legislative options since he, too, was worried about French.

“I completely agree with the former premiers of Quebec and [with] Quebecers who are concerned by the decline of the French language, and I am as well,” Trudeau said.

Quebec’s provincial parties have generally also agreed that French needs bolstering, though they differ on how to achieve that.

Legault said he will send a letter to the other premiers and to Trudeau to explain the new bill.

Meanwhile, provincial minister Simon Jolin-Barrette suggested Thursday that Quebec has the right to unilaterally amend the section of the Constitution that outlines provinces’ legislative powers.

It's not quite that simple, but making the change isn’t outside the scope of possibility either, said Bergman. A given province can, without the other provinces, make amendments that affect only the province in question, though the federal government does generally need to sign off.

‘A CONSTITUTIONAL CURVEBALL’

So far, the federal government hasn’t commented on Thursday’s newly tabled bill, including the constitutional proposal, except to say they’re reviewing it.

The Prime Minister’s Office and the Conservative Party haven’t responded to requests for comment.

Federal Official Languages Minister Melanie Joly said the government will study the proposals carefully—while also noting that linguistic minorities in every province need to be considered, too.

"The situation of French in the country is special, and the government has the responsibility to protect and promote French not only outside Quebec, but within Quebec," she said.

"Our government intends to do its part while continuing to protect the right of linguistic minorities."

The Commissioner of Official Languages "can not speak to the intentions of the federal government with regards to" the proposed constitutional amendment," said a spokesperson for his office.

"However, he is currently analyzing the legislative measures proposed in Bill 96, including the impact they might have on the vitality of Québec’s anglophone community."

The move took many people by surprise, said Marlene Jennings, a former Liberal MP and now the head of a major group representing Quebec English speakers, the Quebec Community Groups’ Network.

The group “is taken aback” by the idea of the federal change, it said in a release.

“That’s a constitutional curveball we certainly were not expecting,” Jennings was quoted as saying.

“This is a fundamental shift in the Canada/Quebec relationship and one we believe is unconstitutional,” she added.

The bill adds up to “a closed-in, narrow vison of a Quebec that is increasingly distancing itself from the rest of Canada.”

Bergman said he considers the proposed bill a dramatic change and “an attempt to legally, socially, culturally re-engineer” the province.

“The CAQ government has gone where the Parti Québécois, since 1976, has feared to tread,” he said.

“The bill purports to make, to enforce, to provoke [that] French [become] not only the official language of Quebec, but the common language of work, play and the public space,” he said.

“All other languages would thus be rendered private.”

A ‘DUTY’ TO USE NOTWITHSTANDING CLAUSE: LEGAULT

The province’s use of the notwithstanding clause, or the “override clause,” underscores how much change the bill would bring, said Bergman.

That clause allows provinces to pass legislation that likely wouldn’t stand up to legal challenges over Canadian rights and freedoms—it shields the laws from those challenges.

It’s meant to be rarely used, only in very occasional scenarios when provinces need to assert their particular needs, but the CAQ government also recently used it to pass Bill 21.

“The use of the notwithstanding clause, like [with] Bill 21, is disturbing,” said Bergman.

“This bill is an attempt to basically negate individual freedom and liberty. It specifically says that the right to the French language and its use takes priority over every other right in the Quebec charter of rights and freedoms and the Canadian constitutional charter.”

While he believes that “in many respects the bill is probably not constitutional,” said Bergman, “government has reached for every available tool to make [sure] this legislation is adopted as is.”

Opposition parties had another take, with Quebec Solidaire and the Parti Québécois saying Thursday that the bill update had nothing extreme in it, and using the notwithstanding clause was just a way to create a tough appearance.

"The government used the notwithstanding clause as a strategy of communication to say that we are strong to protect the French," said Quebec Solidaire MNA Ruba Ghazal.

Legault defended the use of the notwithstanding clause, which he described as a "legitimate tool" to balance individual and collective rights.

"We not only have the right, but we have the duty to use the notwithstanding clause, especially when the very foundation of our existence as a French-speaking nation is in play."

--With files from The Canadian Press and CTV's Cindy Sherwin and Kelly Greig