In Mitchell c. Procureur général du Québec, 2022 QCCS 2983, Madam Justice Chantal Corriveau of the Superior Court has just suspended the coming into force of sections 9 and 208.6 of the Charter of the French Language as amended by An Act respecting French, the official and common language of Québec, better known as Bill 96.
These sections, which were to come into force on September 1st of this year, required that legal persons such as corporations who file written pleadings in English attach a French translation certified by a certified translator. Failure to do so would result in the filing being refused.
Several lawyers, supported by the intervention of the Bar of Quebec, contested the constitutionality of these sections. The plaintiffs alleged that these provisions violate section 133 of the Constitutional Act of 1867 which specifies that either French or English “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”.
The August 12th judgment suspends the coming into force of the translation requirements while the case proceeds before the Superior Court, notwithstanding an appeal. As indicated in paragraph 82 of the judgment, the Superior Court is contemplating a final hearing as early as November of this year. It is thus possible that the matter will be heard on the merits before the end of the year and that judgment will be rendered this winter. It can be expected that the judgment will be appealed by one party or another. In such case it is probable that the suspension will remain in effect. In the meantime, it is not necessary for a legal person to provide a certified French translation of an English pleading.
While Madam Justice Corriveau is careful not to deal with the merits of the case, her judgment relies on a number of practical considerations such as the lack of qualified translators, the difficulty of meeting the requirements of the Charter in urgent cases, the substantial cost of certified translations and the fact that the majority of corporations registered in Quebec are small entities with ten or fewer employees.
In paragraph 49, the Court observes that in urgent cases, there is a serious risk that certain legal persons will not be able to invoke their rights in proper time or will be obliged to file proceedings in a language other than the language they and their lawyers master the best and which they identify as theirs.
Keep in mind that the sections of the Charter being challenged relate only to written court proceedings and do not apply to the language of testimony or oral pleadings.