“The Second 10 Articles”
A Guide to Bill 14 and commentary on the De Courcy Lisée “Open Letter”
[To avoid confusion, sections of Bill 14 are referred to as “clauses” and the provisions of law that they would amend are referred to as “sections.”]
The Bilingual Designation
Easily the most controversial aspect of Bill 14, Clause 12 would amend the Charter of the French Language by stripping municipalities of their bilingual designation. Here is the proposed new section of the Charter of the French Language:
Section 29.2. Every 10 years following the recognition of a municipal body under subparagraph 1 or 2 of the second paragraph of section 29.1, the Office shall evaluate whether the conditions justifying the recognition have been maintained, and shall send a written status report to the Minister and the body concerned.
The evaluation must be based on the information relating to language in the most recent census taken in accordance with Canadian statistics legislation. If, at the time of the first evaluation, the publication of that data was more than two years old, the evaluation is postponed until the year that follows the publication of the subsequent census. Subsequent evaluations are postponed accordingly.
Unless otherwise provided by law, the Office may also be required to perform such an evaluation, at the Minister’s request, in anticipation of or following a major restructuring of the body, such as a merger or an integration involving the recognized body and another body that does not have such recognition.
Why it matters: Section 29.1 is poorly drafted now, and so it is difficult to tell what the practical implications of the amendment would be. It begins by recognizing English school boards. It then goes on to recognize municipalities of which more than half the residents have English as their mother tongue.
Currently, the combined effect of various sections of the Charter of the French Language, including sections 23, 26 and 29.1, is to allow municipalities designated as bilingual to communicate with citizens in English as long as information is also available in French. Section 26 of the Charter of the French Language allows designated municipalities to use a language other than French “in their names, their internal communications and their communications with each other.”
The new provision would allow bilingual designation to be revoked after 10 years or at any time on request.
What the Open Letter said: “[T]he original bill did not set an automatic status review of bilingual municipalities[.]” (Emphasis added.)
Commentary: The first reading of Bill 14 actually states that the review “shall” take place every 10 years (in other words, automatically). There are some exceptions, under Bill 14, including circumstances where a designated entity asks for the review to take place even before that.
What the drafters presumably meant was that there is no mechanism to strip a bilingual designation automatically, i.e., the minute the population level falls short of 50% and before the ten-year point. That is not much reassurance for threatened municipalities.
This is especially problematic because the census at the federal level, on which the 10-year review would depend, is arguably unreliable. According to experts, including the former Chief Statistician of Canada, Munir Sheikh, the new voluntary census is less reliable than the previous mandatory long-form census. Public commentary has since confirmed that the new voluntary survey is less reliable and produces less accurate census data .
According to the New York Times, “the voluntary survey was sent to one in three Canadians instead of one in five…[and], the response rate plunged anyway, from 94 percent to 68 percent. In a staggering one-fourth of Canadian communities, not enough people responded to make the data usable. (Editorial, “Strategic Ignorance” May 24, 2013).
As a result, municipalities that fall slightly short of the required 50% could be stripped of their status based on inaccurate or unreliable data.
What the Open Letter Said: “…the original bill in no way endangered the possibility of obtaining services in English.”
Commentary: Technically, these provisions deal with communications, not services. But is there any meaningful access to services when citizens cannot ask for the services, do not understand the nature of what it being offered, or cannot receive the information in a language that is understood?
The Supreme Court of Canada decided in a case called Eldridge, in the context of sign language in the health services context, that if you do not understand what is being said to you, and/or if you cannot communicate, then the service is itself discriminatory.
Also, “communications” extend to teaching…and thus has an impact on education.
What the Quebec Bar said: “The amendment proposed by clause 12 changes acquired rights to education in English. It permits, in certain circumstances, the withdrawal of the recognition by the office of the French language using a relatively informal procedure…”. [Translation].
Currently, section 35 the Charter of the French Language prohibits professional orders (for example, the bodies that regulate lawyers, engineers and dentists) from granting professional licenses to anyone whose knowledge of French is not “appropriate to the practice of their profession.”
Clause 13 would further restrict access by imposing additional language hurdles. It would also give the government the power to introduce more requirements, further restricting access to professions by regulation.
Clause 15 changes the current law by preventing the renewal of temporary permits for more than one year, something which is currently permitted under the Charter of the French language
The Open Letter did not address any of these issues.
What the Quebec Bar said: “the Quebec Bar is concerned that these new requirements … will prevent new mobility agreements pertaining to professionals from other law societies in Canada.” [Translation].
Among the most troubling provisions in Bill 14 are those that oblige employers to “thoroughly evaluate the actual linguistic needs related to (a job)” and to do so on a regular basis (section 46 of the Charter of the French language). Indeed, the proposed new section 47 would make it illegal to require that a person speak any language other than French unless the nature of the duties “requires such knowledge” (section 47). This prohibition applies not only to hiring, but also to promotions and transfers.
Why it matters: Employers in Montreal in retail, hospitality and import sectors, to name but a few, serve customers and clients in many languages, and especially in English. This provision would impose a significant bureaucratic requirement of continual revisions and justifications for bilingualism or multilingualism. Under Bill 14, employers will be obliged to “subsequently review such needs periodically” and to justify the hiring, promotion, transfer of any bilingual or multilingual employee. The fact that the incumbent is fluent in French will not affect this provision at all.
It would expose employers to allegations of preferential hiring and promotion and continual litigation and associated costs if a unilingual francophone employee alleges that he or she was overlooked. This does not mean that francophones should be exposed to any form of discrimination: protections already exist under the Charter of the French language and the Quebec Charter of human rights and freedoms. This goes beyond protecting francophones – a legitimate and indeed critical legal protection – and actively penalizes multilingual staff and employers.
What the Open Letter Said:
“… at a time when a fast-growing number of bilingual and trilingual employees ensure the connection of businesses with English-speaking customers, tourists, and the rest of the world, re-establishing French as the usual language at work in this singular corner of North America requires renewed efforts.
This means making sure that large corporations carefully distinguish between the many jobs in which bilingualism is needed, and those in which it is not [……] It also means progressively bringing into the fold midsize businesses, those between 26 and 49 employees.”
Anyone who is “aggrieved” can file complaints with the Commission des normes du travail (section 50).
Commentary: The concept of ensuring the “connection of businesses with English-speaking customers, tourists and the rest of the world” is clearly an insufficient consideration according to De Courcy and Lisée. So what would be enough evidence of need? Bill 14 is silent on the point.
Requirements to continually evaluate and re-evaluate language requirements and to justify requirements that employees have a language other than French is not, in fact, limited to large or even medium size businesses. In other words, this provision suggests that these punitive provisions would apply to all businesses, regardless of size.
What the Quebec Bar said: “We believe that the new obligation on the employer to “subsequently review linguistic needs relating to a position” could be interpreted as allowing an employer to fire, transfer or demote an employee who had been hired, transferred or promoted based on the ability to communicate in a language other than French if a review discloses that the language requirement is no longer useful.” [Translation].
Commentary: People who hold jobs are more likely to be job-threatened if they are multilingual. There has been no attempt to reconcile this with the protection from discrimination based on language in the Quebec Charter of human rights and freedoms.
Post script: The PQ government announced in September 2013 that Bill 14 would likely die on the Order paper.