Quebec health-care language directive open to constitutional challenge: Fréderic Bérard

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One of Quebec’s leading constitutional scholars has come out against a controversial linguistic directive regulating the province’s health care in English and other languages apart from French, warning the new rules are divisive and open to legal challenges before the courts.

Fréderic Bérard, co-founder of the Observatoire national en matière de droits linguistiques and a professor of law at the Université de Montréal, said the July 18 directive issued by Quebec’s Health Ministry likely violates both the Canadian and Quebec charters of rights and freedoms.

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“There’s no doubt that French is the official language in Quebec, but we tend to forget that the anglophones have had constitutional rights, too, since 1867,” Bérard said, alluding to the Constitution Act of that year. “It’s not just that French is the official language, it’s minority rights as well.”

In that context, Bérard suggested, the language directive could be struck down in court, even though the Coalition Avenir Québec government invoked the notwithstanding clause preemptively in the Canadian Constitution to shield Bill 96 from anticipated judicial challenges. Although Bill 96 overhauled the Charter of the French Language, Bérard maintained what is at stake is not Bill 96 itself, but a linguistic directive.

And he argued the directive’s requirement “historic anglophones” must have received an English eligibility certificate from school in order to communicate exclusively in English is an onerous burden that violates security of person in the Constitution.

“If you take a look at Bill 96 — and I’ve said the same thing since the beginning — it’s a bill that was botched,” Bérard said in an interview Friday.

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“It was written very quickly, with a lot of mistakes. It’s unclear, it brings confusion, and when a law brings confusion, it creates arbitrariness. There was sort of a hole in Bill 96 about health services for anglophones.

“Remember when Premier (François) Legault was saying: ‘No, no, no, don’t worry, there will be no change for anglophones in terms of health services,’ and he said that many times. Why did he say that? He said that because some people like me and others said: ‘Your bill is unclear. It’s bringing confusion. And people in the hospitals won’t know how to react to your bill.’ This is why Premier Legault said: ‘No worries.’ ”

“Look what happened,” Bérard added. “It was unclear, they decided to fill the hole and how did they decide to do it? They decided to do it with some kind of directive, which is frankly dangerous in a way. In the sense that if you go to an emergency because you have this or that serious problem and you don’t have your (English eligibility) certificate, it’s no time to look for your papers.

“You have the right to security (of person) that is protected both by the Canadian and Quebec charter of rights,” Bérard continued. “Is that an encroachment to the right to security, asking to prove that they are real anglophones with that kind of paper before being served in English? I would say so, yes. So I think there is some kind of (legal) action that can be taken here under the charter.”

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Bérard, a partner with the firm Gattuso Bouchard Mazzone, acknowledged Quebec would likely cite the notwithstanding clause in its defence of the new language rules regarding health.

“Even though the notwithstanding clause was invoked for the whole of Bill 96, here it’s not about Bill 96 itself,” he explained. “It’s about a directive. I’m not sure 100 per cent that the notwithstanding clause could apply to something else than Bill 96, let’s say, for instance, a directive in very specific matters. The attorney general of Quebec would probably invoke that, but I’m not 100 per cent sure that there is not a kind of hole here in the sense that it’s not Bill 96 that matters, it’s the directive. And the directive cannot invoke the notwithstanding clause because it’s not a law, it’s just a directive.

“Does (Bill 96) cover each and every case like the one I just gave you? (Of) this I’m not sure. Don’t forget that the directive is not a norm by itself. It’s just a way for the government to tell public servants how to react. You as a citizen, me as a citizen, we are not obliged to comply to a directive, right.”

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The Health Ministry produced the directive in response to the adoption two years ago of Bill 96, which mandates that all government workers — including those in hospitals and nursing homes — use French “systematically” in written and oral communications with their clients, with certain exceptions, like emergencies. The directive’s objective was to clarify the exceptional situations in which English can be used in the health sector, but critics counter it does the opposite.

Facing a backlash from the anglophone community, French Language Minister Jean-François Roberge pledged on Wednesday to meet with representatives of the English-speaking community to listen to their concerns about the directive. But some anglo leaders are worried the meeting would be nothing more than a PR stunt by the Legault government, fearing the same result that occurred following sessions with McGill and Concordia universities last fall over tuition-fee increases for out-of-province students.

More than the legal questions, the CAQ government’s latest language policy shift fills Bérard’s heart with sadness.

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“Where is the big gain here for the Quebec government? Why would you do that? Why would you ask people for their (English eligibility) certificate, especially when you know that this certificate is quite difficult to get by now. We all know that. When you’re trying to get your papers it’s like hell, even though as an anglophone you were born and raised in Quebec. It’s tough to get that paper. So you are adding some kind of pressure on public servants (and health professionals) who are trying to save people’s lives in some cases. Why would you do that? The only answer is they’re trying to divide as much as they can the francophones and the anglophones. And you know what? I think this is very, very sad. Why is it sad? Because we’re not like that in Quebec.

“Even the Parti Québécois, which is a nationalist party which wants sovereignty, take a look at what its leaders said in the past. … Lucien Bouchard said (of anglophones) they are us. Lucien Bouchard also said, don’t forget that, it’s very important, when you go to the hospital and you need a blood test, you don’t need a language test. You cannot ask people for a language test when they’re in the hospital, especially when they are in the emergency. Why would you do that? It’s just a way for the (Legault government) to say,: ‘Listen, we’re tough cookies on language. We’re protecting French. Look what they did with the tuition fees (for out-of-province students).’ It’s ridiculous.

“You are dividing people who do not need to be divided,” Bérard concluded. “It makes me sad.”

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aderfel@postmedia.com

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