Guide to Bill 14 and the De Courcy-Lisée “Open Letter”: The First 10 Articles

Bill 14

“The First 10 Articles”

Bill 14 is an omnibus bill, meaning that it is a single piece of legislation that would amend several other laws. Because of its structure, it requires a side-by-side reading of the laws that it purports to amend.

Bill 14 is a government bill, but since the government is in a minority situation, it needs the support of the Liberals or the CAQ.

Bill 14 contains 94 articles. The following text highlights key provisions and ideas related to the first ten, as well as tracking comments from Ministers Diane De Courcy and Jean-François Lisée in their open letter of May 17, 2013 (Open Letter) published in the (Montreal) Gazette.

General Reactions and Commentary

The (Quebec) Bar considers that Bill 14 contains patent violations of freedom of expression and association as guaranteed by the Canadian and Quebec Charters. Because these violations risk affecting Anglophone and Allophone communities in a disproportionate manner, the Bar does not consider that these violations can be justified in a free and democratic society.” (Letter from Bâtonnier Plourde to Madame de Courcy, February, 2013) [Translation]

A petition has been signed with more than 37,000 signatures opposing the bill.

The Open Letter’s response: “Some of our proposals were interpreted by a number of people in the Anglo community not as starting points for discussion, but as an attempt to reduce   the rights of English speakers in Quebec.” (Open Letter, at A17. Emphasis added.)

“A number of people in the Anglo community”

Most of the significant and trenchant criticisms of Bill 14 have not come from “people in the Anglo community” but rather from organizations and institutions with majority Francophone memberships.

These include Quebec Bar Association, the Quebec human rights and youth rights commission, and the Conseil du Patronat. As well, as noted in the commentary from the Quebec Bar Association, the concerns about infringements of rights are not restricted to Anglophone communities, but also to allophone communities. Among influential Francophones who have expressed concerns are senior commentators in La Presse such as André Pratte and Alain Dubuc.

Human rights are not popularity contests. It is not surprising that those most affected by the Bill, those whose rights are directly affected, are also those who are most likely to protest. The clear implication of the Ministers’ comments is that because “Anglos” protest the bill, their concerns are overly sensitive or necessarily mistaken.

The open letter identifies Bill 14 as a “starting point for discussion” and appears to suggest that the concerns raised are somehow premature or reactionary.

The Minsters contradict themselves and their stated intentions of merely wishing “discussion” later on in the Open Letter when they say “were we a majority government, we would table the amendments with the fine print in a single sitting of the parliamentary committee.” In short, had the PQ been in a majority, the Bill would have been rammed through with no discussion.

It is worth recalling that the purpose of tabling a bill in a parliamentary system is to introduce legislation. The idea is to ensure that the legislation becomes law. It is not to start discussions. Legislation is the end state of a significant policy proposal, not the starting point.

Had the PQ merely wished to “start discussions”, there should have been public hearings prior to the introduction of legislation, especially for legislation like this that threatens social peace and contains serious rights violations, not to mention raising legal uncertainties thus opening the door to years of litigation.

Ethnic Minorities and Cultural Communities

Article 1 paragraph 2

The preamble of the Charter of the French language (chapter C-11) is amended by adding the following paragraph at the end:

[…..]

(2) by replacing “the ethnic minorities in the third paragraph by “cultural communities”.

This means that the preamble of the Charter of the French Language would now look like this:

Whereas the National Assembly intends to pursue this objective in a spirit of fairness and open-mindedness, respectful of the institutions of the English-speaking community of Québec, and respectful of the cultural communities, whose valuable contribution to the development of Québec it readily acknowledges;

Why this matters: The term “ethnic minorities” carries with it legal meaning and protections, including in discrimination law and in international human rights law. The term “cultural communities” does not.

“Cultural communities” is an invented term, referring to all those who are not French Canadian or of British origin.  It eliminates the possibility that Anglophone groups are “minorities.” Given that so many non-European groups speak English as a second language, this assumption is highly problematic. The significance of the shift away form minority recognition would be minimal if the rest of the Bill did not strip away rights.

Critics have waved this argument saying either that the terminology does not matter or, alternatively, that it does matter but that Anglophones are not “minorities” in a legal sense. It is noteworthy that the Quebec government has argued in the past, including before international mechanisms, that Anglophones in Quebec are not “minorities.” If this language did not matter, why did the Quebec government argue forcefully in the 1990s that Anglophones are not minorities within Quebec If nothing turned on the distinction?  The answer is simple, and it reinforces the importance of How language is used today, namely that by recognizing groups as minorities, one confers on them the same rights that Quebec is claiming in the larger context of Canada.

The Open Letter’s response: “We certainly didn’t see this one coming. It seemed to us that the bills use of the term “cultural communities,” currently used in Quebec’s laws on immigration, was more respectful, open and modern than the previously used “ethnic minorities” designation.”

Commentary:  Language matters, especially in Language legislation. No one “saw this one coming” because no one (at least in the PQ government) looked at, or even considered the relevance of the International Covenant on Civil and Political Rights, which specifically provides protections to “ethnic, linguistic and religious minorities.” It is far from clear how eliminating recognized rights language, with all that goes with it, is “more respectful, open and modern”.

What the Barreau du Quebec said: “In dissociating the minority from the majority, and identifying minorities as “cultural communities” the government is showing preference for language that further isolates minority groups, which, at the end of the line, will serve to justify political interventions and even corrective interventions designed to integrate the values of the majority.” [Translation]

What should be done: The Charter of the French Language and, where appropriate, the Quebec charter of human rights and youth rights, should be amended, as required, to specifically include protections for ethnic, religious and linguistic minorities as set out in the International Covenant on Civil and Political Rights.

If it is true, as the Open Letter suggests, that there is no intention to diminish rights, there should be no obstacle to explicitly including basic minority rights in both pieces of legislation.

Article 2: The “foundation” of Quebec’s identity

Article 2 of Bill 14 proposes to amend the Charter of the French language by adding a paragraph to the fact that French “constitutes the foundation of Quebec’s identity and of a distinct culture that is open to the world.”

Why This Matters:  This amendment may not be substantial or substantive, but it literally and expressly obliterates the important contributions of English-speaking, Aboriginal and other contributions to Quebec’s identity and to its distinct culture. It is a gratuitous provocation.

What the Barreau du Quebec said: “Article 2 of the Bill is strong language that appears to exclude the contribution of other linguistic communities in Quebec.” [Translation]

What should be done: Eliminate this article. If, as the Open letter suggests, there is no intention to engage in language that would diminish the contributions of English speakers or others, there should be no difficulty in eliminating this provision.

The Open Letter did not address this issue directly, but in the context of bilingual cities, the Ministers say that they “believe in the value of identity and heritage.”

Article 2 flies in the face of that assertion.

Article 3: The language of civil administration

Article 3 is a lengthy provision that essentially makes French the sole language of the public administration. It goes further and explicitly aims to assimilate “various clienteles” by actively francisizing them, especially “in schools and the workplace.” (section 1.3(2)).

Why it matters: Article 3 carries a strongly assimilationist flavour. No consideration is given to the language of service to those who do not speak French, or who are not comfortable in French, nor is there any indication as to whether they will have a right to access any services.

What the Barreau said:The Quebec Bar inquires about the definition of (the words) “clientele” and “francization”. In the first case, will institutions be targeted? The second term has a connotation that suggests obligatory assimilation.” [Translation]

What should be done: This provision should be amended so that any suggestion of obligatory assimilation be eliminated, and replaced by language encouraging all Quebecers to learn French and improve their French language skills.

Article 7: Requesting a service from government

Articles 7 and 10 of Bill 14 are among the most worrying provisions in the draft legislation, but they have received little attention.  Article 7 inserts a new provision into the Charter of the French language: it is worth setting out in its entirety.

18.1. If the documents that may be required under the applicable legislative provisions to establish entitlement to a licence or a similar type of authorization, a grant or another type of assistance, an indemnity, a benefit or another advantage awarded by the civil administration are not provided in French, the applicant shall, at the request of the civil administration, provide a French version of any document specified within the period indicated. If the applicant fails to do so, the civil administration may have the document translated into French at the applicant’s expense.

The same rule applies to any report or document that must be sent to the civil administration under legislative or regulatory measures for the purpose of following up or monitoring regulated activities. If the applicant considers that the request sets an excessively short deadline or imposes a disproportionately heavy burden, the applicant may apply for a review of the request to the highest authority of the department or agency concerned.”

Why it matters: This provision forces anyone applying for a license (for example, a driver’s licence, a business license, legal aid, access to any type of aid or benefit, a government grant, or any type of service or other advantage), to communicate with the civil service in French.

Right now, people can apply for most types of authorizations, benefits or licenses in English, and supporting documentation can be provided in English. Under Bill 14, there would no longer be the case.

The Open letter suggested that the provisions of Bill 14 would not remove rights or services from English speakers. This provision directly contradicts the open letter and not surprisingly, it is not mentioned in the Open Letter. Being able to communicate with service providers and to access justice forms part of equality rights.

What the Barreau du Québec said:  “…  legal aid can be considered to be a form of assistance, [and] the administration could also demand the submission of documents in French by clienteles that are incapable of doing so, and who are probably among the most vulnerable. The proposed amendments would displace the financial burden of translation towards people seeking justice, a burden, which is currently covered by institutions. We believe this article should be removed.” [Translation]

Article 10: Health Services and Social Services

This article amends the Charter of the French language by providing that

“in the health services and social services, if documents filed in clinical records are not in French, the institution concerned, the request of the person authorized to obtain such a document, shop to free of charge. A French summary of the file or a French version of the document or documents specified.

If the situation requires greater dispatch, the person authorized to obtain the documents may also require a quick rundown of their content in French.”

Why it matters: Health and social services workers will be able to demand the full translation of files into French. Translation costs will come from the English health system. There is no reciprocal or comparable provision that can require English-language health or social services workers to require translation of materials from French to English.

Many social services in Quebec are delivered to Anglophone and allophone communities by non-profits and organizations that are on a shoestring budget. The financial burden of providing full translations would simply cripple most service organizations in the province.

What if there is a real emergency? Say, a rush medical decision, or an authorization from healthcare officials? Or, if a file has to be transferred from the English-speaking system to a specialist in the French-speaking system. The English version of the Bill says that the person authorized to obtain the documents may require “a quick rundown of their content” in French, and this, in addition to the full translation of the file. The summary would also be at the expense of the English system. (There is a discrepancy between the English and French versions of the Bill on this point, with the English version, suggesting that the rundown can be requested in addition to the full translation. The French version suggests that the rundown would be instead of the full translation. The discrepancy between the two versions is both unhelpful and introduces uncertainty and cost into the implementation of this provision.)

There are perfectly valid reasons for wanting unilingual workers to understand the files that they are reading. However, this solution imposes financial burdens on an already-beleaguered health system (I am betting there was no consultation with the English system on this point). It also potentially jeopardizes the health or safety of Quebecers.

What the Quebec Bar said: “The general obligation that is created by this new article would constitute an unacceptable burden on most establishments targeted by the amendment. The Bar acknowledges that the government must ensure the security of citizens and avoid disasters that could result from a lack of comprehension, but we believe that the legislative route is not the best way to achieve this goal.” [Translation].

What the Open Letter said in response to these concerns: Nothing.

 

THE NEXT 10 ARTICLES

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Categories: Bill 14, Discrimination, Language rights

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