Quebec Superior Court Justice Marc-André Blanchard’s decision to partly uphold the province’s 2019 law banning some public-sector employees from wearing religious symbols is a dog’s breakfast that has left both supporters and opponents of Bill 21 barking their disapproval.
In its contradictions, however, the ruling is a good reflection of Quebec society, which has always had a harder time than the rest of Canada reconciling the principles of religious accommodation with the aspirations of the majority. Justice Blanchard’s decision adds to the evolving jurisprudence on the separation of church and state in Quebec, but it is hardly the final legal word on the matter. On Bill 21, it may only be the opening statement.
The law is a recent manifestation of the long-standing desire of Quebec’s francophone majority to assert its distinctness in the face of what have always been perceived as attempts by others to suppress it. This struggle goes all the way back to the fall of New France in 1759, when their British overlords prohibited francophone Catholics from holding public positions.
Justice Blanchard’s ruling refers to this early act of discrimination, citing the authors of a history of Jews in British North America that refers to the 1763 nomination of a Jewish postmaster in Trois-Rivières. “His appointment appears to have originated in the need of the government to find a qualified individual who would be loyal to the administration in Trois-Rivières, a town with few English inhabitants,” authors Sheldon Godfrey and Judith Godfrey wrote in 1995.
“The governor felt he had few to choose from and [Aaron] Hart seemed the only one available with the necessary qualifications: he was not a French Canadian, he was able, and he was loyal.”
The 1774 Quebec Act allowed francophone Catholics to hold public positions without renouncing their religion. During the three centuries that followed, however, English and French Quebec evolved as essentially separate societies. In French Quebec, the Catholic Church rose to a position of all-encompassing power until the Quiet Revolution, when a generation of young secularists triumphed over the aging ecclesiastics.
While francophone Quebeckers are often still referred to as cultural Catholics – Quebec French is full of references to the religious traditions of yesteryear – secularism has joined language as a core societal value that ranks above others, including freedom of expression. While English Canada worships at the altar of diversity, French Quebec sees multiculturalism as a threat that negates its four-century-long struggle for survival.
The adoption nearly two years ago of Bill 21 by the Coalition Avenir Québec government of Premier François Legault is, hence, widely viewed in francophone Quebec as an act of self-respect and assertiveness. That the Legault government moved to invoke the Canadian Constitution’s notwithstanding clause to shield Bill 21 adds to a perception that the federalist framework remains hostile to the aspirations of French Quebec.
Justice Blanchard’s decision risks exacerbating this impression. He ruled that Bill 21 violates the Canadian Charter of Rights and Freedoms on almost every count – and that the limits the law places on freedom of religion are too broad to meet the requirements of Section 1 of the Charter, which allows governments to infringe on rights for “pressing and substantial” reasons.
The ruling says that the Legault government’s decision to invoke a constitutional override prevented Justice Blanchard from striking down Bill 21 outright – but that Quebec could not use the notwithstanding clause to deprive English Quebeckers of their constitutional right to control their own school boards. The English Montreal School Board, whose court challenge to Bill 21 was one of four covered by Justice Blanchard, was able to claim a major victory.
In determining that the Charter rights of linguistic minorities go beyond language to include the protection of their values and culture, Justice Blanchard’s decision left many observers scratching their heads. He concluded that Bill 21, by forbidding English school boards from hiring teachers who wear religious symbols, violates Section 23, the part of the Charter that protects minority education language rights, and that Quebec cannot invoke the notwithstanding clause to get away with this violation.
The logic of this aspect of the ruling was lost on many, including Mr. Legault. “I don’t see any relationship between language and values, including secularism,” the Premier said. Le Devoir editorialist Robert Dutrisac wrote that the ruling “creates two systems of religious rights in schools along linguistic lines, [establishing] a kind of legal partitioning” within the province.
It will be up to higher courts – Quebec Justice Minister Simon Jolin-Barrette gave notice that he would appeal the ruling – to decide if Justice Blanchard’s interpretation of Section 23 stands. If it does, the divide between English and French Quebec will only get deeper.
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Konrad Yakabuski