Talking Back: An Examination of Legislative Sequels Produced by the National Assembly of Quebec in Response to Judicial Invalidation of the Charter of the French Language

Grounding her approach in historical and discursive institutionalist frameworks, the author examines the process of the judicial invalidation of sections of Quebec's Charter of the French Language (aka Bill 101) and the legislative sequels produced by the National Assembly of Quebec (i.e. Bills 178 and 86). When examined from an historical institutionalist perspective, the author notes that the National Assembly of Quebec appears to have strategized its response to the Supreme Court's decision through an assertion of parliamentary sovereignty, rather than the desire to engage in a “dialogue” with the Supreme Court. However, the author points out that a closer examination of how, in 1988, the Bourassa government crafted Bill 178 (Act to Amend Bill 101, Charte de la langue française) reveals that the first ‘legislative response’ to the Supreme Court’s decision in Devine and Ford was crafted exclusively by the executive branch, in virtual secrecy among a handful of Bourassa’s cabinet members. Displeased with the outcome of Bill 178, the author explains that Anglophone Quebec's civil society actors challenged the legitimacy of the Charter of the French Language, as well as the notwithstanding mechanism at an international level, with their submission of Ballantyne, Davidson, McIntyre v. Canada to the United Nations Human Rights Committee (UNHRC). In 1993, the UNHRC ruled that Bill 178 violated sections of the International Covenant on Civil and Political Rights. The author explains that the UNHRC’s decision eventually pressured the National Assembly of Quebec to amend Bill 178 with the passage of Bill 86, and consequently brought the Supreme Court’s remedies into partial effect. However, she notes that Quebec’s subsequent amendment to the Charter of the French Language, Bill 86, was not a “legislative sequel” in response to judicial nullification; rather it was primarily a response to comply to international human rights norms. Bill 86 amended sections 58 and 68 of the Charter, but contrary to the recommendations of linguistic equality set forth by the Supreme Court, the Bourassa government ensured that French remained the predominant language on signage. The evidence presented by the author suggests that Charter compliance was an almost secondary effect caused by the primary objective of Quebec’s adherence to international human rights norms for the purpose of continued participation in international affairs. In its rejection of the Charter dialogue model, the author uncouples the pairing of the notwithstanding clause with the notion of parliamentary sovereignty and, in doing so, raises critical questions regarding the roles of the provincial executive and legislative branches during the process of constitutional interpretation. The author concludes that in lieu of Charter dialogue, a modified version of coordinate interpretation is a more appropriate model of judicial review for summarizing the interaction of actors within the case studies of Bills 178 and 86.

PhD dissertation

University of Ottawa

Ottawa, ON

2017

vii-217p.

en