Bill 115- Judicial Guerrilla Warfare?

It's hard to look at the language furor over the passage Bill 115 without shaking one's head in utter disbelief at the drama and hysteria generated in Quebec society by French language militants over an issue that is so inconsequential.

Like the public outcry for a law against the wearing of a veil in public, one that would affect all of two dozen Muslim women, the disproportionate and frenzied response to the language law is hard to fathom.

Lost in the clamour by language militants over of Bill 115, is the fact that the law is illegal and another example of the callousness of the Quebec government, which makes it a practice to regularly enact legislation that cannot withstand judicial challenge.

If Bill 104 was illegal and rejected by the courts, there's little doubt that its replacement, Bill 115, which is even more restrictive, will pass judicial muster, but to the Quebec government, it is of no consequence.

Brett Tyler, the lawyer who successfully fought Bill 104 to the Supreme Court, told all who would listen that should someone wish to test the validity of Bill 115, the case would likely drag on for approximately seven years.
As in the case of the family that won the case against Bill 104, those who would fight Bill 115 in court, would never benefit from any victory, as their child would have already been forced into a French school during the intervening years. It is the very definition of a Pyrrhic victory.

The reality of this judicial nightmare is, that by hook or crook, the government of Quebec will have its way.

And so this government continues the fine tradition of waging 'judicial guerrilla warfare,' whereby the weakness of the legal system is exploited to assert a political agenda that is either unconstitutional or violates the Charter of Rights and Freedoms.

Now to those language militants who patrol this blog, please don't accuse me of being a hothead in coining the term of 'judicial guerrilla warfare,' the concept comes from that stalwart of the independence movement, Joseé Legault, who advised the government in a column, to pass a string of illegal laws and take advantage of the long delay before the laws are overturned.

"What should we do? Let's apply Bill 101 to non-subsidized English schools. Of course, an Anglo lawyer will appeal it to the Supreme Court.  Again.  And he'll win.  Again.  And then we'll start the process all over.  Again.  Let's call it guerrilla legal warfare." 

"Que faire? Appliquer la loi 101 aux écoles anglaises non subventionnées. Bien sûr, un avocat anglo amènera le tout jusqu'en Cour suprême. Encore. Et il gagnera. Encore. Et on recommencera. Encore. Appelons-ça de la guérilla juridique." Josée Legault

French is the language of law and justice.

 It's a dirty device, first developed by Camille Laurin back in 1977 when the separatist government passed Bill 101, the infamous Charte de la langue française.

While whole sections of the law were illegal, Article 7, in Chapter 3, was so egregiously unconstitutional, that a high school student could see that its precept clearly violated the BNA Act.

Charte de la langue français.

Article 7; (Official language) - French is the language of the legislature and the courts in Quebec."

BNA Act

"133. Either the English or the French Language may be used by any Person in the Debates of the Houses of the Parliament of Canada and of the Houses of the Legislature of Quebec; and both those Languages shall be used in the respective Records and Journals of those Houses; and either of those Languages may be used by any Person or in any Pleading or Process in or issuing from any Court of Canada established under this Act, and in or from all or any of the Courts of Quebec"

It took the  Supreme Court two years to rule unanimously that the clause was illegal and without force. When the decision was handed down Premier René Lévesque hypocritically called the ruling "colonial, cruel and archaic." He had privately warned Camille Laurin that he was going too far.

In the succeeding years, Bill 101 has been systematically stripped by the courts of its most abusive and illegal provisions, much to the chagrin of militants, who claim that any a law dutifully declared by the Quebec National Assembly should not 'butchered'(charcuté) by Canadian courts or in fact be subject to Canadian law at all.
Of course this opinion would be valid if Quebec were a sovereign state, something it is not, as far as I know.

The referendum law of 1995 is another example of the Quebec government knowingly passing an illegal law, when it disallowed spending by any person or organization, other than the two official YES and NON committees during the referendum campaign.

Essentially, the law had the effect to bar the federal government from spending money to promote its position for a united Canada.

In passing the law the separatists knew full well, that even if the law were to be ruled unconstitutional years later, the benefit to the NO side would inure during the referendum campaign.

Now before I get an avalanche of comments reminding me that Ottawa did surreptitiously funnel money to the 'YES' side, by way of a shady front organization known as Option Canada, let me say this.

Separatists, to this day, claim that the 'illegal' funds, as well as the massive Unity Rally (organized and paid for by federalists, outside the bounds of the referendum law) held in downtown Montreal, made the difference in the slim outcome of the vote.

After the referendum, 20 criminal charges were laid against Option Canada by the Chief Electoral Officer of Quebec, who opened an inquiry into the alleged breach of the referendum law. Those proceedings were quickly halted when once again, the Supreme Court ruled that part of the referendum law was illegal.

So while separatists to this day claim they were robbed, it was in fact the Canadian government who was prevented from putting its full weight behind the NO option. Theoretically Ottawa could have and should have, entered the referendum debate in full measure.

For the last eight years, certain Quebeckers have been deprived of their right to attend English school because of an illegal law. Unfortunately, given the hollowness of the victory over Bill 104, only a fool would challenge Bill 115, notwithstanding its legality.

And so, in analyzing Ms. Legault advice, it's hard not to conclude that there's a method in her madness. Passing illegal laws and having them remain in effect for years and years, seems to be a successful strategy.

I think I would have much preferred if the Liberal government had implemented the draconian "Notwithstanding Clause' to close this so-called educational loophole.

It would have cleared the air and belied any pretence that the government was acting in a balanced and fair manner.