A man walks past the Supreme Court of Canada in Ottawa, on June 16, 2023.Adrian Wyld/The Canadian Press
Supreme Court of Canada rulings touching on Quebec’s distinctness usually land like bombs in the French-speaking province that has often gone to extraordinary lengths since Confederation to protect its culture and identity.
The top court’s move to strike down sections of Quebec’s language law that banned English on commercial signs, in 1988, unleashed a political firestorm that led then Liberal premier Robert Bourassa to invoke the notwithstanding clause to protect a modified version of Bill 101. Mr. Bourassa’s use of Section 33 of the Canadian Constitution to shield the law from another court challenge was greeted with outrage in the rest of Canada, contributing to the demise of the Meech Lake Accord aimed at meeting Quebec’s constitutional demands.
Quebec sovereigntists denounced the Supreme Court’s 1998 ruling – stating that sovereignty needed the backing of a “clear majority” of Quebeckers voting on a “clear” referendum question – as an attempt to shackle them by raising the bar for independence, which they had set at support from a simple majority of Quebeckers. But the hoped-for (by sovereigntists) political backlash never materialized, and the independence movement entered an extended period of decline.
The top court’s decision on Thursday to grant leave to appeal to several groups challenging the constitutionality of Quebec’s 2019 secularism law will figure in a potentially explosive political climate as the sovereigntist Parti Québécois leads the polls in advance of a late-2026 election. It is unclear whether the Supreme Court will rule on Bill 21 before or after the next vote. But either way, its decision to hear the appeals from Bill 21 opponents that include the Canadian Civil Liberties Association, the English Montreal School Board, the National Council of Canadian Muslims and the World Sikh Organization of Canada ensures the issue will remain in the political forefront when Quebeckers next go to the polls.
Quebec’s Act respecting the Laicity of the State, commonly referred to as Bill 21, prohibits public employees in a position of authority from wearing religious symbols on the job. Its provisions apply to police officers and prison guards. But Premier François Legault’s Coalition Avenir Québec went beyond the recommendations of a 2008 commission on religious accommodation to also include public school teachers. The law was widely seen as targeting Muslim women who wear the hijab, at a time when Quebec had been experiencing an influx of Muslim immigrants from North Africa. Sikh and Jewish teachers have also been affected by Bill 21.
The CAQ government pre-emptively invoked the notwithstanding clause to shield the law from a constitutional challenge. In 2021, the Quebec Superior Court ruled that, while the use of Section 33 made Bill 21 “legally unassailable,” it exempted English-language school boards from the law by invoking minority-language rights enshrined in the Charter of Rights and Freedoms. In early 2024, the Quebec Court of Appeal reversed the carve-out for English schools and ruled that the use of the notwithstanding clause made the law untouchable.
Mr. Legault said then that Quebec would continue to use the notwithstanding clause “as long as necessary for Canada to recognize our societal decisions [and] the Quebec nation.”
The Supreme Court must now decide whether to caution the pre-emptive use of the notwithstanding clause and determine whether the law violates minority-language and gender-equality provisions of the Charter that cannot be overridden by Section 33. Whatever it decides, it will not end the political debate in Quebec.
The CAQ government has already promised to table new legislation this year to reinforce Quebec’s secularist identity after launching investigations at 17 schools where teachers are alleged to have omitted curriculum that conflicted with their religious values. Mr. Legault has also raised the possibility of banning prayer in public spaces, such as city parks, where Muslims often gather to pray collectively.
In 2022, Prime Minister Justin Trudeau forcefully denounced the pre-emptive use of the notwithstanding clause after Ontario briefly invoked it in a dispute with education support workers. “The Charter of Rights and Freedoms cannot be a suggestion,” Mr. Trudeau said then.
However, it will fall to his successor as Liberal Leader and Prime Minister, if not a future Conservative government led by Pierre Poilievre, to articulate Ottawa’s position on Bill 21 before the Supreme Court. Whoever is in charge, they will need to weigh the political sensitivities of the law in Quebec against the imperative of standing up for the Charter.
“It is paramount, even vital, for Quebec to be able to make its own choices, choices that correspond to our history, our distinct social values and our aspirations as a nation,” Quebec Justice Minister Simon Jolin-Barrette and Secularism Minister Jean-François Roberge wrote on X on Thursday, while calling on other provinces to join Quebec in defending the “parliamentary sovereignty” of their legislatures.
If the top court overturns parts of Bill 21, a political storm is almost certain.