I see two issues in the latest judgment of the Court of Appeal concerning Law 21 on state secularism. The first is legal, the second, political. This decision of the Court gave rise to numerous comments, mostly laudatory. I will first offer a brief review of what we have read and heard on the subject, accompanied by a few clarifications.
The issue of rights
The judgment was hailed by Mr. Legault as a great victory for Quebec. In which I believe he is absolutely right, the derogation clause having been preserved, at least for the moment.
It is indeed an essential tool to protect our freedom to legislate in accordance with our needs and aspirations, protected from federal intrusions. But in the process, the Prime Minister also spoke of a total victory. However, the Court of Appeal did not rule on the strictly legal content of the law. The exercise became of little use when the exemption clause applied.
This applies to Quebec authorities and, in principle, to the Supreme Court. As long as this remains the case, we will not know what the higher courts think of the provisions of this law.
Mr. Legault was pleased to emphasize that the law had a consensus among Quebecers (“Quebec is behind me”). However, a third of them were opposed to it in 2019 and the proportion has increased slightly since then (according to the latest Léger survey).
According to the Prime Minister, the Court clearly affirmed that the rule of the parliamentary majority must prevail over any other authority in all matters, including, therefore, the rights of minorities. But is it wise to entrust a majority with the task of ruling in this field in complete autonomy?
In this spirit, Mr. Legault likes to say that Bill 21 is “popular”. When it comes to rights, the popularity of a law is no guarantee of fairness. This is what the history of nations teaches, and Quebecers, a minority themselves, know something about it. This is why court arbitration is necessary.
Ministers said Bill 21 struck a balance between collective and individual rights. Go for collective rights, which have indeed been well served. But individual rights?
While we don’t know how many people are harmed under this law, how can we talk about balance? The ministers were perhaps referring to a balance between popular demand and what they believed they could grant. This is another way of asserting majority rule.
Once again, being a small minority nation ourselves that has suffered from colonialism, discrimination and numerous attacks on its rights, shouldn’t we be sensitive, generous on this level? Because it is indeed a minority that is being targeted here, in this case people of the Muslim faith (and especially women).
The political issue
This second issue arises from the fact that Mr. Legault very skillfully converted a conflict of jurisprudence into a political dispute and included it in the old tradition of our national struggles. From then on, a very large part of Quebecers feel mobilized.
From now on, anyone who decides to protest in the name of the aggrieved people and to challenge Law 21 commits a kind of betrayal of the country. This political issue, which has come to eclipse the other issue, also comes from the fact that this episode reminds us of the deep state of dependence in which we find ourselves vis-à-vis the federal government.
A dependence which constrains us, diminishes us and humiliates us: the majority of our parliamentary initiatives require its approval, it encroaches on most areas of legislation which are in principle reserved for us, it tries to impose its priorities, its philosophy on us. We have certainly made progress over the past century, but are we fully aware of the work that remains to be accomplished?
Let us take as an example the behavior of Prime Minister Trudeau in this matter. Now that Quebec’s highest court has done its job, it reminds us that we still need absolution from Ottawa. He even threatens us: he will perhaps submit the case to the Supreme Court, which will not fail to bring things back to order.
This is a lack of caution. If everything goes normally, Canadian judges will also have to bow to the derogation clause. What would happen if they decided to attach some restriction allowing them to reject the Quebec initiative (and perhaps others to come)? What would be the reaction of Quebecers? What if the House of Commons also followed up with a draft amendment to the Constitution?