It was always assumed that, if Quebec ever left Canada, it could only happen through the front door, and only if a clear majority could be persuaded to vote “oui” to an unambiguous referendum question. Such a result being of no interest to a majority of Quebeckers, Canada needs to recognize the fact that the current government of Quebec is trying to tiptoe out the back door.
It is doing so by poking ever larger holes in Canada’s constitutional order, which protects fundamental rights, and replacing it with a parallel regime where the executive can curb rights and meddle in people’s lives with little to no judicial oversight.
The government of Premier François Legault first went in that direction in 2019 with Bill 21, a law that bans people from holding many public-facing provincial jobs – teacher, judge, prosecutor, police officer – if they wear visible symbols of their religion.
It reinforced this unspoken constitutional agenda on Tuesday, when Quebec’s National Assembly adopted Bill 96.
Where a business or doctor in the rest of Canada would be protected by the Charter of Rights and Freedoms against a warrantless search or an arbitrary demand to turn over documents, under Bill 96 a Quebecker suspected by the authorities of failing to make the French language paramount in communications would be unprotected against what would otherwise be unconstitutional searches, seizures and invasions of privacy.
And where a provincial or federal employee who was told they could not work while wearing a turban, a kippah, a cross or a hijab would be protected by the Charter in the rest of Canada, the same person in Quebec would simply have to find another job – as has been the case under Bill 21.
With both laws, the Quebec government has shielded itself from the onus of protecting the rights of citizens by invoking the notwithstanding clause.
That’s the part of the Charter that allows legislatures to override a long list of constitutional protections. These suspensible rights include freedom of conscience and religion, the right to be secure against unreasonable search or seizure, and the right of all people to be treated equally before the law, without discrimination.
The notwithstanding clause’s consequences were demonstrated in 2021, when a Quebec Superior Court judge ruled that Bill 21 is unconstitutional. Justice Marc-André Blanchard said that forcing a person to choose between their religious beliefs and their employment “has a cruel consequence that dehumanizes those it targets.” But, the government of Quebec having taken the necessary steps to insulate unconstitutional measures from constitutional challenge, he said he was obliged to let the law stand.
No doubt Quebec is in now for a derecho storm of lawsuits going after the most problematic aspects of Bill 96. They include the power of language inspectors to raid offices without a warrant and seize files, including medical ones, and a section that says a court ruling written in English cannot be released before a French-language version is available.
The law will even try to make it illegal to require that provincial judges be bilingual – this in a province with 1.1 million English-speaking people who have the constitutional right to use their mother tongue in any court in the land.
In spite of its excesses, Bill 96 has raised few eyebrows outside the province.
There was a brief flurry of concern a year ago over the fact it will unilaterally amend the Constitution by adding a clause that says, “French shall be the only official language of Quebec. It is also the common language of the Quebec nation.”
But the overall response to Bill 96 in the rest of Canada has been one of overwhelming uninterest. While language has long been the hottest political issue in Quebec, and its protection is seen as sacrosanct, it hardly registers outside it. The rights of francophones beyond Quebec generate as little interest as those of anglos within the province.
The response to Bill 21 has also been muted, because federal politicians have dared not criticize an override of basic rights that polls say is popular with many Quebec voters.
What is being overlooked, though, is the way Quebec City is quietly redefining the constitutional order. We seem headed into a future of asymmetrical regimes, in which a citizen’s most basic rights could change from province to province.
Is it what Canadians want? Is it what Quebeckers want?
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