The great mandarin of the Parti Québécois, Louis Bernard, had written in lead, with very small handwriting, on lined paper, a bill on sovereignty. The text, perfectly readable for the uninitiated, was the centerpiece of the preparation for independence which had preceded the election of Jacques Parizeau in 1994. To me, who was the last to join the team of advisers, it was explained that the text , of which there was no copy, included nothing new in relation to what the PQ had been saying since its foundation.
But studies had shown that Quebeckers, especially the undecided who had to be convinced, were essentially “normative”. They were impressed with law, order, judges. To hear, in speeches, that retirees were going to keep their old age pensions in a sovereign Quebec was one thing. Reading it into a piece of legislation was another, much better. It was going to be distributed to all homes.
normativity. I always knew that this would be the main weapon of opponents of the law on secularism. As early as May 2019, the Léger polling institute had measured for Jack Jedwab, of the Association for Canadian Studies, that the support of 59% for the banning of religious symbols for teachers melted by 19 points when we waved the specter of a judgment affirming that this would contravene the Quebec Charter of Rights.
Loaded dice
Obviously, the dice are loaded. Bill 21 would easily be deemed non-discriminatory… in European law. But in Canadian law, judges whom Quebeckers do not appoint and who interpret a Constitution that Quebeckers neither negotiated nor voted on think the opposite. And they mean it very strongly. The proof ? Bill 21 amends the Quebec Charter of Rights specifically to make it compatible with the ban on religious symbols. The adapted charter affirms “the fundamental importance that the Quebec nation attaches to the secularism of the State” and specifies that the National Assembly can adjust the exercise of rights and freedoms in order to guarantee “respect” for “the secularism of the state”. It’s clear. No objective jurist can conclude that the Quebec Charter thus formulated contradicts Bill 21. But the Government of Quebec has provided that the federal judges will in no way take into account the changes made.
In April, Justice Marc-André Blanchard of the Superior Court, drum roll, ignored these changes. He claimed the ban violated the Quebec Charter. It is precisely to offer protection against this bias that the law suspends the application of the two Charters, Canadian and, regrettably, Quebec.
Convincing Quebecers that Bill 21 is contrary to the Quebec Charter is the key element of its opponents’ game plan. With a new poll from the past few days, Jack Jedwab can measure the influence of two important events that took place last year. First, the Blanchard judgment. Then, the fact that in December, a veiled teacher from the Outaouais was transferred for non-compliance with the law. As a result, support for banning teachers from wearing religious symbols dropped four points (from 59 to 55). The level of opposition jumped among 18-24 year olds, from 49% to 66%.
The battle of opinion
Have we reached a pro-law 21 floor? Not sure. Because out of 100 people who support the law, there are statistically 55 who consider it “important that the Supreme Court” rule on the issue of discrimination. There are still more who believe that Bill 21 does not suspend the rights of minorities. They are right in principle. But not in Canadian law. Opponents of the law will therefore use this loaded Canadian normativity to make uncertain supporters of secularism feel guilty. They have a reasonable hope of thus winning back minority support in public opinion. The ground would therefore be prepared for political forces, such as the Liberal Party of Quebec and Quebec solidaire, to make Quebec back down on this point.
It is not inevitable. With Premier Lucien Bouchard, we were experiencing a similar problem in 1998. The majority of Quebecers had acquired, with the 1995 referendum, the conviction that Quebec had the right to self-determination. Jean Chrétien and Stéphane Dion counted on Canadian normativity to undermine this conviction. Their reference on secession to the Supreme Court was devious on several levels. The questions posed by the government to the Court were biased – the judges complained about it – and Chrétien appointed two judges during the proceedings, as if the coach of the Canadiens could appoint referees during the game.
Together with civil society allies, we organized a major information campaign explaining how biased and unhealthy this dismissal was. International experts were cited. Mr. Bouchard made several important speeches. Print and radio advertisements were broadcast. The economic situation has given us a boost or two, too. When the Supreme Court ended its hearings that spring, we had won the battle of opinion.
The exercise of lucidity to which the partisans of secularism must compel themselves on the state of the forces and the pitfalls to come is therefore essential. No to give up. But to better win the battles yet to come.
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