The Mascia judgment: Justice denied

Par Beryl Wajsman le 3 février 2015

Justice Salvatore Mascia's judgment in the latest challenge to Bill 101 continued the tradition of avoiding the hard truths that would have necessitated condemning the ugly compromise of justice that has been the hallmark of Quebec law since the passage of this notorious legislation. In so doing he failed a generation and blunted hope. Worse still, he denied natural justice.

I do not use the term "natural justice" pejoratively. It is a term of legal art. It refers to those rights inherent to every human being simply by right of birth. And one of those primordial rights is that all people are to be treated - and seen to be treated - equally before the law. The dignity of the individual has been the litmus test of all civilized systems of law. It is a test Quebec fails time and again.

Just because we still have our constitutional guarantees of being able to use English in the courts does not negate the fact that non-francophones are not "seen to be treated equally before the law." Law is not merely doled out in courtrooms. It is meted out in our hundreds of encounters with agents of the state. They too represent law. And it is the marginalization of minorities implicit in 101 that has led so many of those agents to treat non-francophones with neglect and contempt assuming rights have been stripped over and above those that 101 aborted. Witness the treatment by Sacre-Coeur Hospital officials just last week of a lab technician who had the audacity to speak English to a fellow worker.

Brent Tyler argued that 101's "French predominance" requirement was discriminatory and violated Canadian Charter of Rights guarantees on freedom of expression. Mascia rejected the argument largely because he felt the French language was still "vulnerable" because of the North American "sea of English" and the rising number of immigrants. Even if true, which it is not, the response should be "so what?" Mascia used the wrong discipline to avoid the right question.

Mascia morphed from jurist to sociologist to deflect the challenge. I could cite countless studies to show that French is not endangered. But this is not the place nor is there the space. In any case it is beside the point. Individual rights cannot be compromised in order to achieve demographic goals. That is the mindset of the command state, not a free state.

Justice Mascia twisted fact, reason and logic to buttress the bankrupt notion so many of the politically correct have that we must maintain our "social peace" on language. Here's a news flash... there is no social peace on language. Every day non-francophone citizens are demeaned by words and actions from legislators to police officers to ticket takers to bus drivers to revenue agents to the OQLF and the list goes on. They are demeaned because the effects of 101 - overtly and subliminally - have led too many in authority to assume that "les autres" are not at all equal. Social peace is not the goal of a free society. Social justice is.

There is another fundamental element of justice Mascia ignored. The doctrine of acquired rights. From the time of Montesquieu and his seminal work "De l'esprit des lois," western law has attempted to guard against encroaching on rights citizens had enjoyed prior to the passage of new law. Indeed, international legal covenants on ethnic, religious, cultural and language rights have sought to protect this very principle because it is so crucial to safeguarding minorities. By this doctrine - even without reference to Canadian constitutional protection - if Quebec was an independent state at the time 101 was passed, the acquired rights of English speaking citizens at the time of passage would have to be respected.

Just two and a half years ago this province joined in the Quebec City Declaration of the Inter-Parliamentary union reaffirming these principles. Just two and a half weeks ago tens of thousands of Montrealers marched in the streets for freedom of expression in the wake of the Paris massacres. The hypocrisy is stifling. When will we bring to an end, to paraphrase Gary Shapiro, "second-class citizenship in a first-class country?" History has taught us that the courage to confront a society's treachery often starts with bold and brave judges. Justice Mascia missed an opportunity to let truth triumph.


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