So here we are. Having previously passed Bill 21, effectively barring members of certain religious minorities from employment across much of the public sector, the government of Quebec has lately passed Bill 96. Amongst other charms, the law prohibits the use of any language but French in the province’s workplaces, large or small, public or private, provincially regulated or federal, in the enforcement of which the language police are now authorized to compel the production of any document, in whatever form, on whatever device, without a warrant.
That both these bills offend violently against the Charter of Rights and the Constitution of Canada (Bill 96 also purports to amend the Constitution, unilaterally, to declare Quebec a “nation” whose “common language” is French) is not even contested: The Legault government conceded as much when it inserted a provision in each bill invoking the notwithstanding clause, insulating it from the protection of not only the federal Charter but also Quebec’s own Charter of Human Rights and Freedoms.
In effect, the Legault government has detached the province, in significant ways, from the Canadian legal and constitutional order. Parts of each bill will no doubt be invalidated by the courts on other grounds: the division of powers, for instance. But the bulk will remain. In important aspects of life in Quebec, the Charter, and the rights it embodies, will simply no longer apply.
The damage this does is not limited to Quebec’s minorities, or to Quebec’s social cohesion. It is also Canada that is harmed, perhaps irreparably. If Canada was defined, from its founding, as a community in which majorities are constrained from abusing the rights of vulnerable minorities – an ideal, I acknowledge, from which we have often fallen woefully short – that definition no longer holds. In carving Quebec out of the Canadian constitutional order, the Legault government has also been hollowing out the idea of Canada.
Or rather, it is the Canadian political class, including the leaders of every federal party, that has done so, by its acquiescence in these schemes. The notion that a government in Canada, in the 21st century, might impose a regime of religious segregation in the public sector, or bar the use of one of the official languages of Canada, not just on public signs, but in private conversations, might have been the occasion for our notoriously flexible political class to find their backbones at last, to take a stand in defence of foundational principles.
Instead, they sought the nearest cover they could find. The most any of them could muster was that they might, hypothetically, join a court challenge of the legislation, should one succeed in reaching the Supreme Court – not challenge it themselves, mind you, but cheer on the efforts of others.
Perhaps they might have imagined that all this would soon pass – that this little orgy of minority-bashing and lawlessness would be the last of it – that having scratched that itch, the Legault government would move on to other things. But it is increasingly clear that this is only the start.
The province’s Justice Minister, Simon Jolin-Barrette, has lately delivered himself of the opinion, in an interview with Le Journal de Québec, that the province need not submit itself further to the federal Charter, or even the provincial version: When the French language is at stake, he told the paper, “it’s not up to the courts to define the moral contract, the living-together contract. It is up to the elected members of the National Assembly to do so.”
The Premier, for his part, has signalled more trouble on the constitutional front, this time over immigration. Quebec already enjoys broad powers over immigration, notably in the selection of economic immigrants. Now François Legault is demanding that Ottawa also give way in the matter of family reunification: Without such powers, he told a gathering of his Coalition Avenir Québec earlier this spring, Quebec risked becoming “a Louisiana.”
Not content with this sort of over-the-top nationalist rhetoric, the CAQ has also been actively recruiting separatist stars to run under its banner, notably the former Parti Québécois minister Bernard Drainville, father of the “Values Charter,” a precursor to Bill 21. And should the Supreme Court overturn Bill 21 or Bill 96, even in part – as many expect, and as many suspect Mr. Legault has always intended it should? What then?
The point is not that all this is happening, or may in future. The point is that this is happening after what came before. This latest surge in Quebec nationalism, with its disregard for constitutional limits and demands for more, ever more powers – indeed, the Legault government has taken to demanding a hand in the exercise of federal powers, in everything from the choice of Supreme Court judges to the collection of federal income taxes, with varying degrees of success – comes on the heels of 60 years of previous federal concessions.
From the Quebec Pension Plan, to the “Quebec abatement” (Ottawa has for decades collected a significantly smaller share of income taxes in Quebec than in other provinces, having vacated tax “room” in favour of the province), to Cullen-Couture and subsequent immigration agreements, to the special exemption granted Quebec’s education system from the bilingualism provisions in the 1982 Constitution, to the 2006 Quebec “nation” resolution in the House of Commons and beyond, strenuous efforts at accommodation have been made, all in the name of blunting the nationalist advance.
By means of these and other adventures in “asymmetric federalism,” the country was told, Quebec would be made to feel more at home in the federation. At the very least, it would knock the wind out of the separatist sails. But that is not, in fact, what happened. Oh, the separatists themselves, as a political movement, may be moribund – the PQ is now in single digits in the polls. And, as it is often said, “no one wants another referendum.”
But why go to the trouble of a formal referendum – of attempting to separate, as it were, in one leap – when you can achieve much the same thing by stages? Maybe the reason support for independence is at such a low ebb in Quebec is that it has become so hard to tell it apart from the status quo.
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