John Ivison: A Bill 21 explosion could engulf Carney, Quebec and Canada

Mark Carney made swift work of Elon Musk, the day after the world’s richest man said Quebec should separate.

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Speaking at a spending announcement in Sherbrooke, Que. on Thursday, the prime minister said the future of Canada will be decided by Canadians and the people of Quebec.

He said his government is building a stronger country so that it can be “free from interference from foreign governments and large tech firms that think they can tell us what to do.”

But he was much more circumspect when asked about his recent interaction with a man who agrees with Musk: the new premier-designate of Quebec, Paul St-Pierre Plamondon.

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Carney said the two had their first direct conversation when he called to congratulate the Parti Québécois leader on his election as premier. They talked about collaborative federalism, homelessness, immigration and relations with the U.S., Carney said.

One thorny topic that does not appear to have come up, but which will loom large over their relationship, is the Supreme Court’s imminent decision on the constitutionality of Quebec’s Bill 21 legislation on the “laicity” of the state, that precludes school boards from hiring teachers who wear a hijab, kippah or turban. The legislation was passed by the province’s previous CAQ government in 2019, on the basis that it was necessary to keep religion out of the public sphere.

The top court heard the case over four days in March and a decision on the constitutionality of the legislation and of the province’s pre-emptive use of Section 33 of the Canadian Charter of Rights and Freedoms — the “notwithstanding” clause — is due as early as the end of November. (Justice Sheilah Martin stepped down from the court at the end of May and under the Supreme Court Act can participate in pending judgments for six months after retiring.)

The top court’s ruling has the potential to reignite separatist sentiment in a province where fewer than one in three voters currently say they support another independence referendum.

St-Pierre Plamondon has said that he is more focused on affordability issues in the short term, but separation is the PQ’s raison d’être and picking fights with Ottawa will boost nationalist sentiment. The new premier will be hoping that the court strikes down the legislation and sets strict limits on how provincial governments can invoke Section 33.

Ottawa intervened in the case, arguing that pre-emptive use of Section 33 to shield legislation from the courts amounts to “indirectly amending the Constitution.” However, the federal government remained studiously neutral on the legislation itself, saying Ottawa takes no position on the constitutional validity of the bill.

Others, such as the Canadian Civil Liberties Association, the National Council for Canadian Muslims and the English Montreal School Board have been less reticent, arguing that Bill 21 violates freedom of religion and equality rights in the province. They also contend that using the notwithstanding clause pre-emptively exceeds its intended purpose.

My take is very much conditioned by my research on a forthcoming biography of former justice minister Irwin Cotler.

Cotler was a prominent academic in Quebec in 1976 when René Lévesque’s PQ government was elected and pushed for a referendum in spring 1980.

At the time, Cotler noted the apprehension of the Jewish community, especially over Bill 101, which established French as the sole language in the province.

But Cotler was relaxed about the separatists being in power, reassured by the knowledge that Lévesque’s Quebec nationalism was inclusive and the PQ’s use of the term “Québécois” referred to all inhabitants of the province, not just French Canadians.

St-Pierre Plamondon has referred to an inclusive civic nationalism that applies to all residents and citizens. In his victory speech, he pledged to govern for all Quebecers, without exception.

Yet, even more so than the CAQ government that he has just defeated, the sovereignty project at the core of his mandate is about the promotion of the French-speaking nation and protecting Quebec’s distinctiveness.

On a recent appearance on the popular Quebec talk show Tout le monde en parle, St-Pierre Plamondon was the only party leader who abstained when he was asked whether he supported the proposal in France to ban Muslim women from wearing a hijab in public, as proposed by the National Rally party.

The next day, he “clarified” his position, saying there was no question of forbidding religious signs in public.

But this is not Levésque’s PQ.

Cotler said the line of intolerance was crossed by Bill 21, saying it is constrictive. “It does not so much separate religion from the state, as it authorizes the state to interfere with religion,” he said.

He also condemned the excessive use of Section 33, which he acknowledged in 1982 was “a necessary compromise” for prime minister Pierre Trudeau to pass the Charter, but one that came with a hefty price tag.

“I remember going to see Trudeau at one point. He said the choice was not between a Charter of Rights with a notwithstanding clause and one without. It was between a Charter of Rights with a notwithstanding clause or no Charter at all. But I think it was his expectation that it would rarely be used,” he said.

That expectation has proven overly optimistic.

Section 33, or what Quebec calls the “parliamentary sovereignty clause,” has been invoked 25 times since 1982, predominantly by Quebec to shield constitutionally dubious laws that it claims are necessary to protect its distinct culture.

The provincial government’s lawyer, Isabelle Brunet, who appeared before the top court in March, argued the clause was introduced as part of a “pivotal, historic political compromise” and explicitly grants legislatures the sovereign authority to enact laws that override certain Charter rights. Quebec argued that the text of the Constitution allows pre-emptive invocation (or at least doesn’t prevent it).

Justices asked Brunet whether the Supreme Court could acknowledge a Charter violation, even if the law remains valid.

She argued the court should not issue a declaratory judgment specifying which rights the bill breaches, since it might lead to public confusion.

But it seems that this is the direction some of the justices are heading: a fudged decision that says Bill 21 is discriminatory but allows it to stand.

That might, at least, forestall a political crisis. Even Supreme Court justices can read the news, after all.

But the potential for conflict does not end there.

The federal government has sought limits on the use of Section 33, to ensure it is not used to “distort or annihilate” constitutional rights and freedoms to the point they “shrivel beyond recognition.”

Richard Wagner, the chief justice, sounded open to that argument when he asked Brunet about a hypothetical “tyrant” infringing fundamental rights through use of Section 33.

Some kind of limit on the use of the notwithstanding clause is possible, which would in the eyes of the separatists restrict Quebec’s ability to be master in its own home.

The adoption of the Charter moved Canada from being a parliamentary democracy to becoming a constitutional democracy.

There has been an unsteady balance of power between the judicial and legislative branches of government ever since, and it is now teetering as never before.

It is not being overly dramatic to say that as it goes, so may go the nation.

National Post

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