The weather is getting better, the Canada Day long weekend is just around the corner and we could all use a break…so Francois Legault decided it’s the perfect time to attack multiculturalism!
Last weekend, the Quebec premier had this to say: "It’s important that we don’t put all cultures on the same level; that’s why we oppose multiculturalism…We prefer to concentrate on what we call interculturalism, where we have one culture, the Quebec culture…"
Legault, of course, is just repeating something that has become commonplace in Quebec: the notion that multiculturalism is a threat.
That’s one of the reasons why Legault has been fighting for full jurisdiction over the choice of immigrants to his province, especially the family-reunification category.
LANGUAGES SPOKEN AT HOME
Not content to just tell people what language they should speak at work, he’s taken to musing about the language people should speak at home. He apparently doesn’t want families reuniting if they are going to be speaking a language other than French in their own house!
For forty years, Canada has had constitutionally guaranteed official bilingualism within a framework of multiculturalism.
The old "two founding peoples" vision (English and French) was replaced by a view that Canada is enriched by the vibrant diversity of all cultures present, and that irrespective of national origin, certain rights to services in both official languages were to be protected.
Things like access to official language minority schools have been guaranteed. That means, in turn, that the English-speaking community of Quebec and the French-speaking minority of, say, Manitoba both have the constitutional right to control and manage the Boards that oversee the schools their kids can attend.
Other language rights are protected by the Canadian constitution. For example, English and French must be used at all steps of the legislative process in Quebec, Manitoba and New Brunswick (the only officially bilingual province) and the right to use both languages is guaranteed in pleadings before the courts of those provinces.
In order to change the constitution in a way that affects guaranteed language rights, the 1982 Constitution Act says explicitly that you need a joint resolution of the House of Commons and the Senate. That’s what Quebec did when it replaced religion-based school boards with language-based institutions. Lucien Bouchard was the premier, I was in the Liberal opposition and both parties worked together to modernize the system.
Resolutions were obtained in both houses of the Canadian Parliament authorizing the change and It has gone into effect and worked since. Problem is, Legault has also attacked (with Bill 40) the right of the English-speaking community to control and manage its own school boards. The courts have had to intervene to enforce the constitution and stop him.
Since that rebuke, Legault seems to have resolved to never again let the Canadian constitution interfere with his plans to remove minority language rights. With Bill 96, Legault is now claiming to have unilaterally changed the B.N.A. Act, the founding constitutional law from 1867, to remove language guarantees for equality of English and French in official legal documents and before the courts.
No resolution of Parliament was required, in his view, and neither Justin Trudeau nor his Justice Minister David Lametti have stood up to defend the Canadian constitution or the citizens whose rights are being removed.
Those rights have been reinforced through a series of Supreme Court decisions and the bilingual nature of the courts and legislation in Manitoba, Quebec and New Brunswick are constitutionally sacrosanct. Lametti seems to be unaware.
After Bill 96 was enacted at the end of the legislative session in Quebec City, anglophone Quebecers woke up to the fact that they could no longer get a marriage certificate in English and an English birth certificate from B.C. may as well have be from the other end of the world. You need to have both officially translated - at your own expense! Of course this flies in the face of the constitution. But Trudeau and Lametti don’t want to make waves in the province where they both get elected, so they do nothing.
I was working in the legislative branch of the Quebec Justice Department in the late ‘70s when the Supreme Court ruled that the failure to respect the B.N.A. Act’s bilingualism obligations meant that all Quebec legislation could be struck down. A mad scramble ensued and the legislation was all reenacted, in both official languages, the next day.
Manitoba stonewalled but was eventually compelled to produce a full bilingual version of all of its legislation and the forms that come with it. I also worked in Manitoba for a couple of years to oversee that translation.
Imagine for one second that a Manitoba government would claim to be able to unilaterally amend the Manitoba Act, that mandates this official bilingualism! That was in fact a key argument the Manitoba government has tried in the past and it was rejected conclusively by the Supreme Court. If it were tried again, the Federal government wouldn’t waste a second challenging it.
Why then won’t the feds lift their little finger to protect the same right to use English in the courts in Quebec?
WHY THIS INERTIA IN OTTAWA?
When the constitution allows for a difference for one province, it does so explicitly. For example, there is a different rule for access to English school in Quebec which is baked right into s. 23 of the 1982 constitution. There is, however, no difference allowed when it comes to the requirement to enact legislation, every step of the way, in both languages in Quebec. The use of both languages in legal documents before the courts is also guaranteed. So why this inertia in Ottawa?
To find an answer, it’s good to start with Bill 21, the Quebec law that openly discriminates against religious minorities generally and Muslim women in particular.
That law, like Bill 96, is so patently unconstitutional that Legault has preemptively used the notwithstanding clause to say that it applies despite the Charter of Rights.
Since that law was enacted, we’ve had various degrees of dithering from the different Federal parties, including Trudeau’s Liberals. But Trudeau is the Prime minister. Only he can refer these issues directly to the Supreme Court. Problem is, he won’t, because he’s terrified of Legault. As a result, the first time in our history, we have a federal government that refuses to defend the Canadian constitution.
In the meantime, religious and linguistic minorities are being left to fight the discriminatory and unconstitutional Bills 21 and 96 on their own. It’s a shameful abdication of responsibility by Trudeau and Lametti but such is the state of play when it comes to defending the rights of Canadians who happen to live in Quebec.
Against that backdrop, the Trudeau government has introduced language legislation to shore up the ageing Official Languages Act. Quebec has taken to sending in missives to the Feds telling them what changes have to be made to their law to harmonize it with Quebec’s language laws. This is very complex and detailed handiwork that appears to be beyond the grasp of the team Trudeau has tasked with shepherding the file through Parliament.
As a result, the fall session in Ottawa will no doubt see more than its fair share of debates on language.
For now, whether at the lake or in a local park, let’s just give ourselves that break and enjoy this weekend’s celebration of our fabulous country where, despite these ups and downs, we’re all so lucky to live together. Happy Canada Day!
Tom Mulcair was the leader of the federal New Democratic Party of Canada between 2012 and 2017.
