I think this is probably why the Federal Court of Appeal has adopted the standard of, “Does it clearly violate?” You can see the argument. How can you demonstrate your knowledge of French without speaking French? That's the argument on that side of the ledger.
On the other side, you could say that section 20 requires that communication.... When the government invites you and communicates with you, it does it in the language of your choice, which could be English, in this case. The criterion that you have to meet is to demonstrate your knowledge of French. That's part of what you have to show to meet the condition of citizenship, but otherwise, the communications with you by the government before, after and during this are done in the language of your choice. That would be the argument.
At the end of the day, what would a court decide? It's hard to predict. You can have those two arguments. You can have arguments that subsection 16(3) of the charter talks about promoting the use of both French and English in Canada. Is it a relevant consideration that French is the minority language in Canada, but it's the majority language of Quebec? Again, you could have some arguments on those sides.
Assuming there is a violation—the court could say that if you're asked to demonstrate your knowledge of French, you are required to communicate in French, so it's a violation of section 20—then the issue would become whether is it justified by section 1 of the charter. There is case law about the test that has to be met. The test generally requires showing that there is a sufficiently important objective to the legislation, and that it is a reasonable limit. In terms of a reasonable limit, the court will look at whether it minimally impairs the right that is affected.
Case law to date has recognized that the promotion and preservation of French in Quebec is a legitimate objective. The most recent decision of this is the Nguyen case at the Supreme Court of Canada. The first ones were Ford and Devine, talking about the importance there.
It's in the second criterion that it's become quite difficult. Is it a minimal impairment of the right? Then the question becomes, have you adopted the measure that's least intrusive to achieve your objective? In the case law about the language of business in Quebec, when the law required only French, it was found to be an unjustifiable limit because it was too extreme. When the law was that you had to have both French and English, the court found that that was a reasonable measure, even if it brought some disadvantage to English-speaking stores.
Those are all the things that courts will look at when faced with a charter challenge. They will look at evidence to ask what is the impact, what could be alternative measures, and are there any ways to allow some flexibility in the bill? For instance, if someone has a learning disability and has difficulty learning French, is that going to be an absolute prohibition, or is that going to be something that's taken into consideration by providing reasonable accommodation? Those would be some of the issues at play in a court looking at this and determining constitutionality.