Today I am delighted and honoured to welcome Professor James Archibald for his insights into a burning current issue in Québec, Canada.

You will find his bio at the end of this post.

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Lawyers and translators will rejoice as markets are set to expand. Bill 96 will most likely pass.

At the May 13 sitting of Québec’s National Assembly the Minister in charge of language policy and the French language, Simon Jolin-Barrette, introduced Bill 96[i], a proposal which would, in the minister’s words, “affirm that the only official language of Quebec is French […] and that French is the common language of the Quebec nation”[ii]. In order to accomplish this objective, Bill 96 proposes to make extensive revisions to the Charter of the French Language[iii], which was given royal assent over forty years ago.

One of the most far-reaching effects of the bill is the use of Article 33 of Canada’s 1982 constitution which allows Québec’s National Assembly, like other provincial legislatures, to derogate from certain sections of the Canadian Charter of Rights and Freedoms[iv], which is a fundamental law in Canada.  This derogation would allow Québec to function outside the strictures of the Charter with respect to certain protected rights and freedoms for a period of five years following the final adoption of such a bill thus effectively hampering any constitutional challenges to the bill once adopted and shielding the Québec legislation from normal forms of legal recourse.

This measure raises a number of human rights concerns among a plethora of stakeholders including the Québec Community Groups Network, which held its own hearings on Bill 96 [v] in addition to appearing before the parliamentary commission, and the Québec Bar, which was one of the few selected to appear before the parliamentary commission studying the bill[vi]. Also appearing before the commission was another major stakeholder, Québec’s Order of Translators.[vii]

Building on its social and political capital, the current government decided to make this move in a strategy based on the classic majority-minority oxymoron where elected majority governments can promote certain policies which override the interests of minority stakeholders ostensibly for political reasons.

As Thomas Mulcair, the former president of Québec’s professional regulatory board, the Office des professions du Québec and a member of the Québec Bar, recently stated, “You only have to read [Bill 96] to know that it is unconstitutional.”  He went on to point out that “it is absolutely impossible that the minister [who is also a member of the Québec Bar] did not have a legal opinion telling him that taking away the right to use English and French equally [in the judiciary] is equally illegal. The Québec Bar has just said that it is illegal and unconstitutional.” In fact, Mulcair contends that the current government knows that the proposed legislation will be rejected by the courts, calling the bill a “planned failure” [viii] which under the cover of Article 33 will give Québec five years to get the population to swallow legalized institutional discrimination which I have elsewhere called linguicism.[ix] In this political drama, Minister Jolin-Barrette is nothing more than a “sorcerer’s apprentice” according to Mulcair. 

Jocelyne Richer, a journalist commenting on the Bar’s brief in the left of centre paper Le Devoir concurs. “Bill 96 […] is open to legal attack if it is adopted in its current form.”  In support, she quotes the Bar’s brief: “although the use of the notwithstanding clause is entirely legal, it cannot affect the constitutional rights conferred by section 33 of the Constitution Act, 1867. […] Moreover Bill 96 undermines the principle of judicial independence by refusing to require bilingualism of candidates for judicial appointments.”[x]

In all probability the bill will pass despite its flaws. As a result there will be a five-year window of opportunity for lawyers and legal translators. Indeed, one could call Bill 96 a job creation project for lawyers and translators.

There will be innumerable challenges as the Bar has clearly pointed out in its brief: abusive use of Article 33 of the Canadian Constitution, as well as Bill 96 Articles 5, 32, 35.1, 40.2, and 214. The Bar concluded stating very clearly that the societal impact of the Bill 96 will be extensive. In its mandate to promote the rule of law and to ensure the protection of the public, the Bar drew the attention of Québec’s legislators to the many possible challenges to the bill and the problems that will most likely arise in the administration of justice. Lawyers and constitutional experts will have a lot of work on their plate. It’s great for the business of the law, but society may have to pay a heavy price.

The translation market will expand over the same five-year period. There is reason for translators to rejoice. There are two angles to this from the point of view of the Order of Translators: a profusion of contracts and an opening to reserved acts in legal translation.  One could legitimately ask if the Order were acting as a professional order whose purpose is to protect the public or as a professional union whose purpose is to procure advantages for its members. This has always been an underlying concern of Québec’s professional system[xi] which was put in place at about the same time as the original Charter of the French Language was adopted.

In this regard, OTTIAQ’s brief made three specific recommendations.

1. Articles 5, 32 and 116 should require that translations be approved by a certified translator, that is a duly admitted member of the Order.
2. Article 5 should be amended in order to ensure that any translation carried out under this Article be approved by a certified translator, that is a duly admitted member of the Order.
3. Article 66 should clearly state that the French version resulting from a translation must be approved by a certified translator, that is a duly admitted member of the Order.

Many of these texts could be both translated and approved by members of the Order, thus making inroads into the approval by the government of reserved acts or areas of practice, one of the Order’s  longstanding strategic objectives. Does OTTIAQ have the human resources at its disposal should the government accept its recommendations or is this just another “planned failure”?

At any rate, both the lawyers and the translators have staked out their positions, and both will most likely profit from the eventual passage of Bill 96.

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[i] Projets de loi présentés le jeudi 13 mai 2021 – Assemblée nationale du Québec (assnat.qc.ca)

[ii] http://assnat.qc.ca/fr/travaux-parlementaires/assemblee-nationale/42-1/journal-debats/20210513/298749.html#debut_journal

[iii]  Charte de la langue française.  http://legisquebec.gouv.qc.ca/fr/ShowDoc/cs/C-11

[iv] Guide to the Canadian Charter of Rights and Freedoms.  https://www.canada.ca/en/canadian-heritage/services/how-rights-protected/guide-canadian-charter-rights-freedoms.html

[v] QCGN Organizes Parallel Bill 96 Consultation. https://qcgn.ca/qcgn-organizes-parallel-bill-96-consultation/ 

[vi] Consultations particulières et auditions publiques sur le projet de loi n° 96 – Assemblée nationale du Québec (assnat.qc.ca)

[vii] Comparution du président en commission parlementaire. L’Ordre comparait devant la Commission de la culture et de l’éducation qui étudie le projet de loi n^o 96. https://mailchi.mp/cd4f5358fd1c/lantenne-express-29-septembre-8166362

[viii] Interview by Richard Martineau on QUB Radio on October 1, 2021.  2-QUB4-1275020

[ix] Archibald, J. « Qu’est-ce que le linguicisme ? » In Archibald, J. & S. Galligani, dirs. (2009) Langue(s) et immigration(s) : société, école, travail, pp 33-48. PARIS : L’Harmattan, 2009.

[x] Richer, J. « La loi 96 pourra être contestée devant les tribunaux, selon le Barreau du Québec ». Le Devoir, 30 septembre 2021, p A4.

[xi] Système professionnel. https://www.opq.gouv.qc.ca/systeme-professionnel

BIO

James Archibald holds a doctorate from the University of Lille, France. He taught at McGill University from 1985 to 2021.  Since the beginning of the academic year 2021, he has been a visiting professor in the Department of Foreign Languages, Literatures and Modern Cultures at the University of Turin, Italy.

His most recent publication is “Le double devoir d’exemplarité” in La Charte.  La loi 101 et les Québécois d’expression anglaise, Presses de l’Université Laval (2021).

He was a visiting professor at the Lebanese American University (2018-2019).  A Chevalier de l’Ordre des Palmes académiques, he is  a member of the Office des professions du Québec and the Conseil supérieur de la langue française. He also serves as a translation expert for the International Organization for Standardization (ISO) and the Canadian General Standards Board’s Committee on Translation Services.