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Court rules New Brunswick lieutenant-governor must be bilingual

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FREDERICTON — A New Brunswick judge says the appointment of a unilingual anglophone to the post of lieutenant-governor in the province was unconstitutional, but that striking down the appointment would cause too much harm.

Court of Queen’s Bench Chief Justice Tracey K. DeWare wrote in a ruling issued today that the Constitution requires the lieutenant-governor in the officially bilingual province to be able to speak both French and English, but she says it will be up to the federal government to decide what steps to take next.

DeWare says that striking down Prime Minister Justin Trudeau’s choice of Brenda Murphy, who took office in September 2019, would create a constitutional and legislative crisis, because it would undermine otherwise lawfully enacted laws, decrees and appointments.

The Acadian Society of New Brunswick had challenged the appointment, arguing that appointing a unilingual anglophone to the role violated constitutional language protections, including the right to communicate with the New Brunswick government in either official language.

Lawyers for Trudeau and the Governor General argued that the appointment is not reviewable by the courts and that the Constitution requires the lieutenant-governor’s office to be bilingual, not the person who holds it.

DeWare wrote that while not all government employees are required to be bilingual, the special role of the lieutenant-governor as the province’s head of state requires the person who holds the role to be able to communicate in both languages.

This report by The Canadian Press was first published April 14, 2022.

 

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Liberals revive bill to create watchdog for Canada Border Services Agency

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OTTAWA — The federal Liberals are rekindling a plan to allow travellers, immigration detainees and others who feel they have been mistreated by Canada’s border agency to complain to an independent body.

Public Safety Minister Marco Mendicino introduced legislation Thursday to give the RCMP watchdog the additional responsibility of handling public complaints about the Canada Border Services Agency.

The bill to create the Public Complaints and Review Commission comes after previous versions died on the order paper.

Border officers can stop travellers for questioning, take blood and breath samples and search, detain and arrest people without warrants.

An internal agency unit handles complaints from the public, while other bodies, including the courts, the federal privacy commissioner and the National Security and Intelligence Review Agency, examine various concerns.

But the border agency is not overseen by a dedicated, independent complaints and review body, prompting civil liberties advocates, refugee lawyers and parliamentary committees to call for stronger monitoring.

The government proposes spending $112 million over five years, and more than $19 million a year ongoing, to establish the new body, which would replace the Civilian Review and Complaints Commission for the RCMP.

Michelaine Lahaie, chairperson of the existing RCMP complaints commission, told a news conference she was pleased to see many of her key recommendations had been included in the bill.

The legislation would require both the RCMP and border agency to respond to interim reports from the new watchdog within six months — addressing a long-standing sore point.

The RCMP commissioner was taken to court over chronic foot-dragging in providing feedback on interim reports from the current complaints commission. The problem has led to lengthy delays in the public release of final reports and recommendations.

“Codifying the timelines is a way to ensure that we remain vigilant going forward,” Mendicino said.

The RCMP and border agency would also have to report annually to the public safety minister on progress in implementing commission recommendations.

In addition, there would be race-based data collection and publication to increase knowledge of systemic racism in law enforcement and guide responses.

The new Public Complaints and Review Commission would carry out specified reviews of any non-national-security activities of the RCMP and border services agency, either on the commission’s own initiative or at the request of the minister.

It would also conduct complaint-related investigations concerning both agencies, which include:

— receiving complaints from the public about conduct and level of service;

— reviews when complainants are not satisfied with the RCMP or border agency’s handling of their concerns; and

— initiating complaints and investigations into conduct when it is in the public interest to do so.

“Ultimately, this legislation is about strengthening our law enforcement agencies by strengthening accountability, transparency and in our trust in them, and it will lead to a safer country for everyone,” Mendicino said.

This report by The Canadian Press was first published May 19, 2022.

 

Jim Bronskill, The Canadian Press

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Five reasons Quebec’s language law reform is stirring controversy

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MONTREAL — A protest against Quebec’s proposed overhaul of its language law drew a large crowd in Montreal on Saturday. The government says Bill 96 is a moderate reform that will improve protection for French while preserving English services, but critics say the bill will limit access to health care and justice, cost college teachers their jobs and increase red tape for small businesses.

Here are five reasons the bill, expected to be passed before the summer, is under fire:

Health care

Marlene Jennings, president of the Quebec Community Groups Network, an anglophone advocacy group, says the law could prevent hundreds of thousands of English speakers from accessing health care in their language. The bill requires government agencies, including health services, to communicate with the public in French except “where health, public safety or the principles of natural justice so require.”

There are also exceptions for people who have the right to English education in Quebec, those who have previously communicated with the government in English and immigrants who have lived in the province for less than six months.

On Tuesday, Premier François Legault offered assurances that the law won’t affect access to health services in English, but Jennings is skeptical. “We already have problems, when language hasn’t been made an issue, to access quality health-care services in a timely fashion. Bill 96 is going to compound those problems,” she said in an interview.

Education

The bill would require all students at English junior colleges to take three additional courses in French. Students with English education rights — those who have a parent or sibling who was educated in English in Canada — will be allowed to take courses on the French language, but other students will have to take other subjects, such as history or biology, in French.

Adding French-language classes in English institutions will be a challenge, said Adam Bright, an English literature teacher at Dawson College in Montreal. Because the law would require students without English education rights to take a French exit exam, Bright predicts few of those students will choose English literature courses, making it more difficult for them to succeed in their other classes.

He said his union expects the changes would lead to staffing cuts in the English department. “My wife is also an English literature teacher at Dawson, so if this bill goes through, both of us are going to lose our jobs,” he said in an interview.

Red tape for businesses 

The bill would expand provisions of the province’s language laws, which previously only applied to businesses with 50 or more employees, to those with 25 or more.

François Vincent, Quebec vice-president of the Canadian Federation of Independent Business, estimates that complying with the law after it comes into effect will involve 20 to 50 hours of paperwork for business owners. Some businesses may have to hire consultants to help. While Vincent said it’s important to help people learn French, he doesn’t think that additional red tape will do that.

“Asking a small garage or a small restaurant in Saguenay–Lac-Saint-Jean that’s working 100 per cent in French to fill out paperwork so that the Office québécois de la langue française will say ‘Congratulations, you work in French,’ will not change anything,” he said in an interview.

Access to justice

The bill would require all court filings by businesses to be in French or translated into French and empower the minister of justice and the minister responsible for the French language to decide which provincial court judges need to be bilingual.

It calls for amending pieces of legislation — including Quebec’s Charter of the French Language, the Code of Civil Procedure, the Consumer Protection Act and Montreal’s city charter.

Pearl Eliadis, a Montreal human rights lawyer, said that complexity can make it hard to see the extent of the changes being proposed. “Access to justice isn’t just going to court and being able to get there, it’s also being able to understand the law,” she said.

Warrantless search and seizure

The bill would proactively invoke the notwithstanding clause of the Canadian Constitution to protect it from charter challenges.

Among the elements of the bill that would be shielded is a provision granting language inspectors the power to engage in search and seizure operations without a warrant. Eliadis said inspectors are not required to show reasonable grounds or reasonable suspicion before conducting a search related to the law.

“It’s more than a group of administrative rules designed to bolster French, because they’ve deliberately gone into each part of the act where constitutional rights can be invoked and essentially, with one sweep of the brush … disappeared an entire swath of our constitutional protections, leaving us with no remedy,” she said. “I worry the rule of law is being diminished.”

This report by The Canadian Press was first published May 19, 2022.

 

Jacob Serebrin, The Canadian Press

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Residential school survivors didn’t want to ‘wear’ decision to raise flag: documents

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OTTAWA — Documents show some residential school survivors told Ottawa they didn’t want to “wear” a decision to raise the Canadian flag, as the government spent months mulling how to lift the Maple Leaf from half-mast.

Hoisting the flag became a source of debate last year after it was lowered for months following the discovery of what were believed to be the remains of 215 children at the former Kamloops residential school site in British Columbia last May.

Next weekmarks the one-year anniversary of that discovery using ground-penetrating radar by the Tk’emlúps te Secwepemc First Nation.

It sent waves of grief, shock and anger through the country. As Indigenous communities reeled and more non-Indigenous Canadians joined them, Prime Minister Justin Trudeau ordered the flags lowered at all federal buildings, including the one atop the Peace Tower.

By June, federal officials were trying to figure out the timing to raise the flag, reaching out to Indigenous leaders and drafting up options.

“This is the longest time in Canadian history that flags have been at half-mast,” Crown-Indigenous Relations officials wrote in a briefing note released to The Canadian Press under access-to-information legislation.

How long the flag remains lowered is typically dictated by a strict set of rules. But when the federal government lowered it to honour Indigenous children who died and disappeared from the 140-year-long residential school system, the timeline for lifting it was not clear.

Ottawa was working to return the flag to full-mast ahead of Remembrance Day, documents show, which is what ultimately happened. The documents say survivors and those in the country’s national Indigenous organizations saw the need to raise the flag in order for it to be lowered on Nov. 8, Indigenous Veteran’s Day, and Nov. 11.

Among those consulted was the National Centre for Truth and Reconciliation’s survivors’ circle. The group met last fall with Carolyn Bennett, the former federal Crown-Indigenous Relations minister before she was named to a new portfolio.

“Several participants mentioned that they did not want Canada to use this engagement to justify the raising of the flag to full-mast,” officials said in a summary of the meeting.

“They did not want to ‘wear’ that decision,” the summary said, adding Bennett signalled she understood and saw how not everyone agreed.

“Some said that they were not ready to see the flag go up to full-mast, others indicated that Canadians still needed to better understand why the flag was lowered.”

Officials recorded differing opinions on the national symbol and how the country planned to mark the finding of more unmarked graves.

“Inuit Tapiriit Kanatami officials reinforced the critical need to honour all the lost children (more than 6,000) and to sustain public awareness of the tragedy of residential schools,” the documents say.

“Officials from the Métis National Council also offered the suggestion that the flag be lowered to half-mast for a week each time a new residential school burial discovery is made.”

In addition, officials said the organizations felt even though raising the flag was complicated, the issue was one that “the Canadian government will need to resolve.” They also believed in the need for another “symbolic recognition at the national level” as a replacement if the flag were hoisted.

The office of the current Crown-Indigenous Relations Minister, Marc Miller, said in a statement it is working with the House of Commons, Senate Speakers’ Offices and other MPs to hoist the National Centre for Truth and Reconciliation’s survivors flag on Parliament Hill in June, which is Indigenous history month.

It also plans to lower the Canadian flag every Sept. 30, the National Day for Truth and Reconciliation.

The Cowessess First Nation near Regina discovered 751 unmarked graves last year. Officials noted that Chief Cadmus Delorme “identified that this is a historic time for Canada” and “that with the number of residential schools, this issue will be present for years to come.”

Indigenous groups also urged governments to take meaningful action on reconciliation, and not leave it at symbolic gestures, the documents show.

Chief Harvey McLeod of the Upper Nicola Indian Band in Merritt, B.C., said recently that more debate is needed about what the flag represents to Indigenous people and Canadians, as opposed to talking how long it should stay lowered or raised.

“I see being more important is us continuing to have the dialogue to correct what was implemented in that plan that was the way to implement the vision of Confederation,” he said. “It was the vision of the salvation of us savages, us Indians, to incorporate us into general society.”

“We really have to roll up our sleeves and find a way of how we can be inclusive of people like myself.”

Congress of Aboriginal Peoples National Vice-Chief Kim Beaudin said he’s more concerned with justice for survivors than symbolic gestures from Ottawa.

“Quite honestly, we’re not really treated as Canadians either, right? Full-(fledged) Canadian citizens in our own country,” he said.

“A lot of times we’re treated like foreigners.”

One survivor of the Kamloops residential school said any gesture from the Canadian government on the flag is meaningful.

“Any recognition that Canada offers is good,” said Garry Gottfriedson, a 69-year-old poet who attended the institution from kindergarten to Grade 3.

“The smallest gestures are good. Any little gesture Canada can offer is a step towards healing.”

This report by The Canadian Press was first published May 19, 2022.

— With files from Dirk Meissner in Kamloops, B.C.

 

Stephanie Taylor, The Canadian Press

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