Prime Minister Justin Trudeau in Thunder Bay, Ont., on Feb. 29.David Jackson/The Canadian Press
When the Quebec Court of Appeal ruled recently that Quebec must provide subsidized daycare to the children of asylum seekers, Premier François Legault attacked Parti Québécois Leader Paul St-Pierre Plamondon for siding with the court.
“He knows that the Court of Appeal judges are named by the federal government, yet says he has more confidence in the Court of Appeal than the government of Quebec to decide,” Mr. Legault said of Mr. St-Pierre Plamondon. “It’s incredible. The PQ Leader is on his knees, face down, before the federal government.”
On Thursday, Mr. Legault struck a very different tone after the same appeal court provided him with an across-the-board legal – and political – win by upholding his Coalition Avenir Québec government’s controversial law banning provincial employees in a position of authority from wearing religious symbols on the job. Quebec’s top court in effect said its hands were tied by the CAQ’s preventive use of the Constitution’s notwithstanding clause to shield its 2019 law from judicial review.
Mr. Legault, whose popularity among Quebeckers has plummeted in recent months, called Thursday’s ruling “a beautiful victory for the Quebec nation.” He did not say whether his confidence in the court had been restored. But he did not have to.
Indeed, the appeal court not only upheld a 2021 Superior Court decision declaring the Act respecting the laicity of the State, known as Bill 21, to be “legally unassailable” because of the use of notwithstanding clause; it also invalidated the lower court’s move to exempt English-language school boards from Bill 21, under minority-language protections guaranteed in the Canadian Charter of Rights and Freedoms.
The unanimous decision handed down by appeal court Chief Justice Manon Savard, Justice Yves-Marie Morissette and Justice Marie-France Bich was a study in judicial restraint. The trio refused outright to rule on whether Bill 21 infringes on freedom of religion and expression. That question, they said, became moot the moment Quebec invoked the notwithstanding clause to exempt Bill 21 from the sections of the Charter that guarantee such fundamental rights.
The judges also punctured the balloon of critics of the CAQ government’s pre-emptive use of the notwithstanding clause. Under the 1982 Constitution that entrenched the clause, they said, the Quebec government was entirely within its rights to invoke it “in a purely preventive manner.”
The pre-emptive use of the notwithstanding clause, formally known as Section 33 of the Charter, had been at the centre of the controversy over Bill 21 in Quebec. Critics accused Mr. Legault’s government of seeking to shut down debate by denying full legal recourse to its opponents. No government had gone that far before.
On Thursday, Mr. Legault vowed to invoke Section 33 – which he referred to as the “parliamentary sovereignty” clause – “as long as necessary so that Canada recognize the choices of the Quebec nation.” He was almost certainly not bluffing.
After all, the CAQ government also invoked the clause to shield its language legislation, known as Bill 96, from a judicial challenge. And the appeal court ruling all but clears the way for the pre-emptive use of the clause in future legislation.
That is, unless the Supreme Court of Canada eventually decides otherwise. Most experts expect the top court is likely to agree to hear an appeal of Thursday’s ruling and that arguments surrounding the preventive use of the notwithstanding clause are expected to be at centre of that case.
Politically speaking, what happens next will depend on how much of a fight Prime Minister Justin Trudeau has left in him.
With his own poll numbers in the tank, Mr. Trudeau may be tempted to present himself as the defender of the Charter that remains the defining political achievement of his father, Pierre Trudeau. By leading the charge against Bill 21 at the Supreme Court, his government could buttress its flagging support in anglophone Quebec and undercut Conservative attempts to win over ethnic and religious minorities across Canada.
Such a strategic move would also help the pro-Bill 21 Bloc Québécois in consolidating its support among francophone Quebeckers outside Montreal – where support for the secularism law remains strong – and frustrate Conservative Leader Pierre Poilievre’s efforts to win more Quebec seats in the next election at the Bloc’s expense.
In early 2023, Mr. Trudeau launched what now appears to have been a trial balloon when he told La Presse that his government was considering seeking a reference opinion from the Supreme Court on the pre-emptive use of the notwithstanding clause, telling the Montreal newspaper: “The idea of having a Charter of Rights and Freedoms is to protect us from the tyranny of the majority.” Mr. Legault wasted no time in accusing him of a “frontal attack” on the Quebec nation.
Mr. Trudeau’s then-justice minister, Montreal MP David Lametti, appeared to be champing at the bit to ask the top court to weigh in. But he never did act before being replaced last July.
With Bill 21 likely headed for the Supreme Court, Mr. Trudeau now has his chance. Win or lose, his own legacy could be determined by how hard he fights to save his father’s.