From 14 to 41: The “Charter’s” other danger

By Beryl Wajsman on November 19, 2013

It is clear to any objective observer that the PQ's "Values" proposal goes too far for nothing other than political opportunism. The old politics of appeal to division and discord. The spectre of "les autres." There is no justification for it in hospitals, social services and anywhere else where laws are not made, interpreted, enforced, and where impressionable young minds are not affected.

Reasonable people can argue that the imposition of laity in legislatures, courts, security authorities and public schools has a long and accepted tradition in liberal democracies. From James Madison declaring in the United States that "the civil administration shall take no cognizance of religion" to Jean Jaures' « modele republicain» in France to President Sarkozy's recent law. Thomas D'Arcy McGee, one of Canada's Fathers of Confederation, warned of this in 1863 in Quebec City when he said, "There is room in this northern dominion - under one flag and one set of laws - for one great people. There is no possibility for that greatness - under that same flag and those same laws - if we succumb to a hundred squabbling particularities."

It might have been hoped that the Marois government would have taken some of these thoughts into consideration before tabling the final version of its “values.” But it did not. Indeed, it went in the other direction and made the “Charter” more revanchiste and invasive in areas of individual prerogative with no public policy justification. Worse still, after announcing Bill 14 would die in committee, the government brought it back full throttle through articles 40 and 41 of the “Charter.” It is insidious and not enough attention is being paid to it.

I have been in the forefront of the battle against Bill 14. I have tried to educate and agitate. I have spoken at public rallies, debated on French media and testified in the National Assembly. I’ve covered almost every alliance against - and almost every victim of – our troubling language laws. I believe that the violations of basic norms of due process and of internationally recognized  civil rights, make 14 – arguably – the most egregious and dangerous legislation in a generation. Nobody was more pleased than I when we heard Premier Marois and Minister De Courcy state that the Bill would be shelved. The last time was just before the final version of the “Charter” was brought down. Now I understand why they were so sanguine. Because in two short articles, the government has – for all intents and purpose – revived 14 through the “Charter.”

Article 40 of the “Charter” enshrines the “primacy of French” as a basic right in Quebec’s Charter of Rights and Freedoms “equal to gender equality and religious freedom.” Article 41 is even more abusive. It declares that all rights and freedoms in the Quebec Charter will be protected and exercised through the prism of the “primacy of the French language.” Take that, Marois is saying! 

In law, when words of general definition are used, the door is open to abuse. That is why law requires specificity not generality. Just the concept of language “primacy” affecting basic rights is abhorrent to the western liberal tradition. It also directly contravenes Sec.10 of the QCRF where Premier Bouchard guaranteed non-discrimination on the basis of language. Is Premier Marois thinking of re-opening the QCRF?

And Just how are we to interpret “primacy?” Does it mean, for example, that the  right to judicial counsel will be allocated on the basis of language? Francophone defendants get their lawyers first? Legal aid applicants who are Francophone will be served first? Does it mean that when non-Francophone citizens deal with revenue officers or security authorities they will have to do so through the prism of French primacy and not understand what is being said? But then why should we expect this government to care. After all, Bill 14 gave language inspectors the right to seize your commercial property for language violations and even to take judgments against business owners without giving them notice of proceedings.

There were significant indications from the Marois government through the summer that it had actually listened to the warnings made in the Assembly on the civil rights abuses inherent in Bill 14. Warnings from Louis Masson, outgoing Batonnier of the Barreau du Quebec; warnings from Gaetan Cousineau, President of the Quebec Human Rights Commission; warnings from noted constitutional attorney Julius Grey; and from myself on the international legal implications. But it seems they were all to no avail.

It is time to rouse ourselves again and make our voices heard. We must not remain complicit in self-abnegation. As a start, make sure each and every one of you attends the “Notre Montreal” Rally  Thursday at noon. Let us take heart – and resolve – from the words of T.D.Bouchard, the “Devil from St.Hyacinthe,” who thundered at Maurice Duplessis that “Freedom cannot accommodate the dictate of what we should think and how we should think.” Nor, we would add, in what language we should think.


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