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Barreau du Québec files bombshell motion

|Written By Mark Cardwell
Barreau du Québec files bombshell motion
Benoît Pelletier says the bars’ motion is a dramatic move that may have unforeseen legal outcomes and political repercussions.

A motion filed jointly on Friday by the Barreau du Québec and the Montreal Bar, asking the Superior Court of Quebec to issue a declaratory judgment that all of the province’s laws, regulations and decrees are illegal because they were drafted and adopted in French only, has stunned politicians, lawyers and legal pundits the province.

“It’s a bombshell, there’s no other way to describe it,” says Benoît Pelletier, a constitutional law professor at the University of Ottawa and a former Quebec Liberal cabinet minister. “I’m sure the Quebec government is quite upset about it — and worried, too.”

In their 21-page, French-only brief, the provincial regulator and the Montreal Bar argue that the National Assembly routinely drafts legislation in French only.

It is only after bills are adopted, they argue, that the government has them translated into English.

The quality of some of those translations has long been a bone of contention between Quebec lawyers and government.

In their motion, the bars argue that Quebec's failure to translate laws at all stages of the legislative process deprives some litigants in the province their rights under article 133 of the 1867 British North America Act.

The article stipulates that while either French or English may be used in legislative debates and pleadings within Parliament and the provincial legislatures in Quebec, Manitoba and New Brunswick, the laws, regulations and decrees that result must be adopted in both English and French.

The bars’ brief cites a long list of examples of Quebec laws that it believes are unconstitutional under article 133.

One is the province’s new Code of Civil Procedure, a major reform that came into effect on Jan. 1, 2016 with the goal of making justice more accessible in Quebec.

The bars argue however that the more than 300 amendments that were written and debated in the National Assembly — and adopted in 2014 by the short-lived Parti Québécois government of former Premier Pauline Marois — were done entirely in French only.

The opposition Liberals argued then about the absence of any English versions of the proposed amendments until nearly two months after they were adopted.

The bars’ brief argues that the final English version of the Code of Civil Procedure was “not the work of the legislator but the fruit of the interpretation by the translators of the National Assembly.”

The brief also contends that discrepancies between some provisions of the English and French versions of the new code led to revisions in 2014, 2015 and 2016.

The law revising the Code of Civil Procedure was adopted under the PQ, but the process began under the Liberals.

The bars’ brief also refers to a 2011 legal opinion by former Supreme Court of Canada justice Michel Bastarache that Quebec was failing to respect Art. 133.

The bars contend they raised the issue with the Quebec government in 2013, but to no avail.

The Barreau du Québec says it officially asked Vallée in 2015 to hire lawyers fluent in English to help with the drafting of legislation.

Though the minister struck a committee to look at the issue, the bars contend she never followed up on its recommendation that the government hire two English-speaking lawyers.

The bars’ brief also contends that a meeting last month between representatives of the bar associations and the province’s attorney general and assembly speaker failed to produce an agreement on the issue.

It was after that meeting, which was held just days before the Quebec government tabled its annual budget — and which notably earmarked nearly $1 billion in new spending for projects that the president of the Quebec Bar had publicly pleaded for in early March — that the bars decided to mandate the Montreal law firm of Jeansonne Avocats to file the motion for declaratory judgment on the issue.

In its request, the bars are asking the court nothing less than to declare all of Quebec’s laws null and void.

They are also asking the court to grant the National Assembly 18 months to fix its legislative language problem.

In a scrum with reporters yesterday, a visibly perturbed Vallée reassured Quebecers that the province’s laws are “tabled, adopted and sanctioned” in proper constitutional form.

She also said the government intends to defend itself in court.

“I don’t want to go into details but I can assure you we will contest the allegations contained in the motion that was filed on Friday,” said Vallée.

Other Quebec politicians however voiced their anger at the two bar associations, who represent the province’s 22,000 lawyers.

In particular, the spokesperson for the Parti Québécois, Véronique Hivon, called the motion “disgusting” and “an insult to Quebec parliamentarians.”

“If we follow (the bars’ logic), we should all be perfectly bilingual and think in both languages,” Hivon told La Presse.  “It’s complete nonsense and an insult to the French fact in Quebec.”

Both bar associations and their lawyers declined requests for interviews from Legal Feeds.

Three former Quebec premiers who continue to practice law in Montreal — Lucien Bouchard (Davies Ward Phillips & Vineberg LLP), Jean Charest (McCarthy Tétrault LLP) and Pierre-Marc Johnson (Lavery , de Billy) — also declined requests for an interview on the topic.

For his part, Pelletier, a constitutional expert who served a decade in Charest’s cabinet as minister of intergovernmental affairs — and who continues to study constitutional issues related to succession in the British royal family — says the bars’ motion is a dramatic move that may have unforeseen legal outcomes and political repercussions.

“I’m very surprised they chose to go the legal route to resolve this matter,” he says. “That’s not to say this isn’t an important issue.  It is a fundamental issue and a question of principle.

“I think their motion has a certain chance of success because of the jurisprudence. But by filing this motion they have also gone very far in their efforts to succeed.”

  • Biligualism, a double edged sword.

    André Roussil
    To be equitable, the solution is to file suits in the other provinces for the french translations of their English laws. Let's get this to the supreme court.

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