Prime Minister Legault seemed to have difficulty believing it. It may be said that the worst is never certain, but over the past year his government has given a resounding demonstration of Murphy’s famous law, according to which “everything that can go wrong will go wrong”.
This time it didn’t happen. In its judgment on the Law on State Secularism (Bill 21), the Court of Appeal agreed with Quebec across the board. “A great victory for the Quebec nation,” declared Mr. Legault. No doubt, but also for himself. In constitutional matters, every legal decision has a political impact, and this one is significant.
If the Prime Minister was able to rejoice in this confirmation of “Quebec’s right to make its own decisions”, a denial of this same right would have made his conversion to federalism all the more difficult to justify. The defense of equalization has its limits.
Even within the Coalition Avenir Québec, there are snakes that are more difficult to swallow. In the eyes of many, secularism has become as important a component of Quebec identity as the French language. The decline of French, which seems inevitable in the Canadian federal framework, may even have the effect of reinforcing intransigence on secularism.
Perhaps fearing that another of these “distractions” which never cease to derail his government would spoil this beautiful day, the Prime Minister preferred to avoid questions from journalists. Who knows what else enthusiasm could have made him say? Someone would surely have asked him if he still doubted the impartiality of the Court of Appeal, made up of judges appointed by Ottawa, which he had called into question just last week.
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It is a little premature to say that “the case is ultimately closed”, as the Minister of Justice, Simon Jolin-Barrette, did. There is no guarantee that the Supreme Court, which will undoubtedly be seized of the case, will be as categorical as the Court of Appeal, but the legitimacy of what is now called the “parliamentary sovereignty clause”, which allows a government to exempt a law from the application of certain provisions of the Canadian and Quebec charters of human rights and freedoms, has certainly been strengthened.
The question of who, elected officials or judges, should have the last word is undoubtedly fundamental for Canada as a whole, but the debate takes on a particular dimension in Quebec, to the extent that the “parliamentary sovereignty clause” constitutes the ultimate means at its disposal to assert its distinct character within the federation.
In 1982, Pierre Elliott Trudeau decided to enshrine a charter of rights in the Canadian Constitution in reaction to the adoption of Bill 101. Under the pretext of ensuring the precedence of individual rights, the Charter was also intended to be an instrument of homogenization of Canadian society from coast to coast, including in Quebec.
We will never know what concrete effect the recognition of the “distinct society” provided for in the Meech Lake Accord would have had. Its rejection, however, made it all the more essential that Quebec have the possibility of exempting itself from the provisions of the Charter if its identity is threatened.
Not only did the Court of Appeal not want to make a value judgment on the substance of the law, but it did not in any way encourage those, in Ottawa and elsewhere, who would like to prohibit the preventive use of clauses derogation under the pretext that society has evolved since the Charter was enshrined. One thing is certain, the situation of Quebec within Canada has not improved.
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We cannot say that the Parti Québécois let out cries of joy upon learning of this decision. It was not its leader, Paul St-Pierre Plamondon, but rather the member for Matane-Matapédia, Pascal Bérubé, who took the microphone, and his comment was remarkably sober.
“I welcome the decision,” he declared, taking note of the fact that the sovereignty of the National Assembly was recognized and that the Court of Appeal confirmed that Law 21 should apply to the entire Quebec territory, including English-speaking school boards, which the Superior Court had exempted.
However, he does not despair of seeing things go wrong. “That’s good, but it’s 1 to 1. That means the story isn’t over. It’s going to the Supreme Court and that’s where it will be decided. So, be careful, it’s not over. »
The policy of the worst is perhaps the worst policy, but that has never stopped us from practicing it. For more than thirty years, sovereignists have dreamed of a scenario similar to that of the failure of the Meech Lake agreement which would recreate the “winning conditions”. In the minds of many, the invalidation of the Law on State Secularism could be one of them, but something else may have to be found.