The Power of Perspectives

The Canadian Bar Association

Yves Faguy


Is the Charter of Quebec Values legally sound?

By Yves Faguy August 27, 2013 27 August 2013

Time for a quick round-up, admittedly all from Montreal's francophone press, of the latest opinions on the Quebec government’s plans to table a Charter of Quebec Values.  In his piece today, Yves Boisvert reminds the Marois government that respect of minorities is a Quebec value.  He describes a government manufacturing a crisis for purely electoral purposes:

Even if the PQ in fact tables a charter that would isolate us, legally, from just about every constitutional democracy, it likely won’t be adopted.  But the ensuing debate will nevertheless position the party for its electoral future.

On the other hand, if we were to find a way to ban religious symbols for public employees, that would immediately open [the government] up to legal challenges. Then we would have a lovely crisis on our hands!

It would be great for Julius Grey and great for the PQ: the courts, if the case law is anything to go by, would rule the ban unconstitutional.  The cases would be appealed. In the end, we would be in a position to argue that the Canadian Charter and the Supreme Court of Canada – in short the English – are preventing Quebec from affirming its identity. [Our translation]

Vincent Marissal is troubled by the absence of any empirical evidence supporting the need for such a charter.  He explains some of the legal pitfalls ahead:

When they got into power, almost a year ago, the péquistes found on their desk legal opinions written for their predecessors, which demonstrated what we already knew; It is not possible to create a hierarchy of rights. Freedom of religion and of expression, in particular, are not to be guaranteed arbitrarily.  They cannot be subordinated to another right.

Banning a public employee from wearing a religious symbol is an infringement of religious freedom. Pauline Marois has already said she will use the notwithstanding clause to circumvent the limits imposed by the Canadian Charter, but she will also have to find a way to get around the Quebec Charter of Human Rights and Freedoms, adopted seven years before the Canadian version and which guarantees the same fundamental rights. Both charters also guarantee gender equality. [Our translation]

André Pratte piles on, comparing the PQ’s efforts to Maurice  Duplessis’ persecution of communists and Jehovah’s Witnesses:

When Maurice Duplessis targeted communists and Jehovah’s witnesses, he had the support of the majority of public opinion.  Just like today’s premier, Duplessis would say it was necessary to “stand up to the situation.”  He was wrong and it was the Supreme Court of Canada, the court so reviled by sovereignists, which put the brakes on this kind of abuse. [Our translation]

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“Language mastery is a critical legal skill”

By Yves Faguy August 22, 2013 22 August 2013

In a study released just before the CLC, Official Languages Commissioner Graham Fraser and his counterparts in Ontario and New Brunswick propose 10 different measures to improve the bilingual capacity of superior courts.

The report is based on three observations:

First, there is no objective analysis of needs in terms of access to the superior courts in both official languages in the different districts and regions of the country. Second, there is no coordinated action on the part of the federal Minister of Justice, his provincial and territorial counterparts and the chief justices of the superior courts to establish a process that would ensure, at all times, that an appropriate number of bilingual judges are appointed. Finally, the evaluation of superior court judicial candidates does not allow for an objective verification of the language skills of candidates who identify themselves as being able to preside over proceedings in their second language.

In the above video at the 4:11 mark, Fraser rejects wholesale the argument that a bilingual prerequisite for Superior Court judges will produce trade-offs between legal competence and linguistic duality dramatically shrink the pool of eligible jurists

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What's on the agenda for the new Minister of Justice?

By Yves Faguy August 21, 2013 21 August 2013

We caught up with the new Minister of Justice following the annual bear pit with CBA members.  We asked him about what his ministry can do to raise more awareness about the crisis affecting access to justice, his plans for a national Victims Bill of Rights, the U.S.'s turn away from mandatory minimums at a time when Canada appears to be going in the opposite direction, and any privacy concerns he might have in resurrecting aspects of the government's shelved lawful access bill.


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Interview with Fred Headon

By Yves Faguy August 19, 2013 19 August 2013

Fred Headon, the CBA's incoming president, talks about his top priorities for the coming year.


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The legal services that the public needs

By Yves Faguy August 18, 2013 18 August 2013

Malcolm Mercer, the winner of this year’s Louis St-Laurent Award, talks about some of the ethical issues confronting the legal profession as it goes through a period of renewal and change.

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