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Judge suspends two articles of Quebec's new language law, citing access to justice

MONTREAL — Quebec's new language law suffered a first defeat on Friday, as a judge temporarily suspended a provision requiring English court documents to be translated into French.
People take part in a protest against Bill 96 in Montreal on May 26, 2022. A Quebec Superior Court judge has temporarily struck down two articles of the province's new language law, saying they could prevent some English-speaking organizations from accessing justice through the courts. THE CANADIAN PRESS/Graham Hughes

MONTREAL — Quebec's new language law suffered a first defeat on Friday, as a judge temporarily suspended a provision requiring English court documents to be translated into French.

Sections of Bill 96 that require corporations to pay a certified translator to produce French versions of legal documents could prevent some English-speaking organizations from accessing justice, Quebec Superior Court Justice Chantal Corriveau ruled.

Corriveau sided with a group of lawyers who argued that the translation requirement violates sections of the 1867 Constitution Act that guarantee access to the courts in both official languages. In a written judgment released Friday, Corriveau said the rule could cause delays and costs that could particularly hurt small and medium-sized businesses.

"The evidence demonstrates a serious risk that, in these cases, certain legal persons will not be able to assert their rights before the courts in a timely manner, or will be forced to do so in a language other than the official language which they and their lawyers master the best and which they identify as their own," she wrote.

The judge ordered that the two articles be stayed until the case can be heard on its merits, likely in November.

According to the court challenge, the group of lawyers claim there is a limited number of certified legal translators, especially in some regions, and that their services cost between $0.20 and $0.40 a word. Members of the Mohawk Council of Kahnawake filed court statements noting that they were one of many groups that would be negatively affected by the law.

Lawyers representing the attorney general of Quebec pushed back on the idea that there aren't enough translators or that the requirement creates any obstacles to accessing justice. 

Élisabeth Gosselin, a spokeswoman for Justice Minister Simon Jolin-Barrette, said Friday in an emailed response to the ruling, "It should be noted that the provisions in this case are intended to promote better access to justice in the official and common language, French. 

"The government is firmly committed to defending this fundamental right. We will not comment further at this time."

Corriveau agreed that the lawyers raised valid questions about barriers to justice, especially in urgent cases that "may require rapid intervention before the courts to avoid irreparable harm."

Félix-Antoine Doyon, a lawyer for the plaintiffs, said his clients believe in the need to protect the French language but feel the government went "very far" with certain provisions of Bill 96.

"We need to protect French but we also need to protect access to justice, and we must remember that in a civilized society the system of justice is there for the people, and for legal persons as well," he said in a phone interview, adding that he expected to be ready to argue the case on its merits in November.

Doyon noted that his challenge concerns only a very small portion of the law, and he warned against drawing wider conclusions on what the decision could mean for other challenges to the legislation. Doyon and the other lawyers are among several groups mounting legal challenges to Bill 96, which aims to strengthen the use of French through updated language regulations that affect businesses, junior colleges, immigration and the courts.

Earlier this week, lawyers for Quebec's judicial council — Conseil de la magistrature du Québec — and for three senior provincial court judges, including Chief Judge Lucie Rondeau, filed a suit to strike down parts of the law allowing the justice minister to decide which judicial postings require knowledge of English. Those sections of Bill 96 violate the 1867 Constitution Act, the lawyers said.

Among the contested provisions of Bill 96 is one that requires the justice minister to take “all reasonable means” to avoid forcing judges to know any language other than French. Those provisions, according to Quebec's judicial council, “undermine judicial independence, linguistic rights and the fundamental right of litigants to access justice."

In February, a Superior Court justice ruled that Jolin-Barrette did not have the power to decide which judicial postings require knowledge of English. The government did not appeal that ruling but instead amended Bill 96 to give the minister more power over the linguistic requirements of judicial postings.

Gosselin said Bill 96 reflects the will of Quebecers. "Not being proficient in a language other than the official and common language should not automatically be a barrier to becoming a judge in Quebec," she wrote. 

The law, which was adopted earlier this year, also proactively invokes the notwithstanding clause of the Canadian Constitution to shield it from Charter challenges. 

This report by The Canadian Press was first published Aug. 12, 2022.

— With files from Jacob Serebrin.

Morgan Lowrie, The Canadian Press