What Is the Bill 21 Dispute Really About?
Reactions to Quebec’s law banning religious symbols in the public sector are a reminder that Quebec and the rest of Canada have differing conceptions of liberalism.
National unity crises are a recurring feature of Canadian history. More broadly, it is common to see crises that leave Quebec and English Canada (a loaded and disputed term that is nonetheless handy) on separate sides of a dispute. With the defeat of Quebec’s sovereignty referenda in 1980 and 1995, and talk of another off the agenda for more than a decade, Canadians were in a lull in their agonizing over national unity apart from calls for Alberta independence whose seriousness is still in doubt.
But the essential disputes underlying Quebec’s independence movement have never gone away. English Canada squarely rejects the dualist thesis of Canada (that the English and French are two equal founding nations and that the Quebec government speaks for the French half) revered in Quebec, if anything, moving from a no-founding-nation to a three-founding-nation hypothesis that Peter Russell explored in his most recent book.
But another element in the constitutional wars that came out in the debate over the failed Meech Lake Accord in the late 1980s is that Quebec and English Canada see liberalism differently. English Canada sits firmly in the Anglo-Saxon liberal tradition, focused on individual rights with a touch of atomism that puts individual rights over those of groups. Added to that are a focus on minority rights and multiculturalism embodied in the Charter of Rights and Freedoms, added to the Canadian constitution at the moment of patriation in 1982 and hostile to the “notwithstanding clause” in the Charter that allows the federal and provincial legislatures of override it under certain circumstances.
After the defeat of the 1995 referendum and as sovereigntist sentiment in Quebec cooled to the point that no government would consider a third referendum, Quebec’s focus turned toward the reasonable accommodations debate that surged after a series of incidents involving religious minorities in the years following the September 11 terrorist attacks. The debate soon focused upon Muslims in Quebec who wore religious garb, the niqab in particular. A consequence of the Charter of the French Language, “Bill 101,” combined with Quebec’s ability to select its own immigrants after a 1978 agreement with Ottawa was increased immigration to Quebec from francophone countries in the Middle East and North Africa, particularly from Algeria and Morocco. These immigrants speak French, but are also Muslim, and have continued to practice their religion. “Reasonable accommodations,” though it has a broader meaning, came to refer to the public practice of Islam, particularly in terms of clothing.
The debate led Jean Charest’s government to create the Quebec Consultation Commission on Accommodation Practices Related to Cultural Differences in 2007, led by two of Quebec’s most established social scientists, sociologist Gérard Bouchard and philosopher Charles Taylor, both veterans of the constitutional and sovereignty debates. The Commission’s report broadly urged the French-speaking majority in Quebec to resist the temptation to feel insecure in the presence of minorities and to show “generosity of spirit.” However, it also recommended that certain types of public employee not wear religious symbols on the job:
We do not believe that a general prohibition concerning the wearing by all government employees of religious signs is warranted. However, we acknowledge that certain duties may imply a duty of self-restraint. … Certain functions by their very nature embody the State and its essential neutrality. This is true, in particular, of judges, Crown prosecutors, police officers and the President of the National Assembly. Individuals who occupy these positions could be required to relinquish their right to display their religious affiliation in order to preserve the appearance of impartiality that their function requires.
During the 2010s, Quebec governments of three different political parties, the Parti Québécois, the Liberal Party, and the Coalition Avenir Québec proposed laws on secularism to follow up on the commission’s work. In 2019, François Legault’s government introduced and enacted Bill 21 (Act respecting the laicity of the State), which went further than the other two parties by banning the wearing of religious symbols by all public employees, including teachers. An early version of the law proposed dabbled with “Catho-laicity” exempting Catholic symbols like crucifixes on historical grounds. In the face of opposition, the CAQ government backed down and banned all symbols, taking the crucifix out of the National Assembly’s chamber. The law also included an invocation of the notwithstanding clause to keep it from being invalidated under the federal and Quebec Charters of Rights.
There was little debate among politicians when Bill 21 was enacted. All political parties in the National Assembly supported it, as did all federal political parties. Provincially, Legault’s government argued with apparent success that secularism was a core principle of post-Quiet Revolution Quebec. Federally, many legislators had reservations about the law, but saw nothing to gain politically by opposing it. The concern was less over a fresh national unity crisis than recognition that in federal elections where minority parliaments were being elected, forming the government depended upon winning Quebec seats. Quebec politicians treated criticism of law from outside the province as a challenge to Quebec’s autonomy and identity, regardless of the law’s merits.
The refusal of federal politicians from outside Quebec to discuss the law seemed justified when a question about Bill 21 from Shachi Kurl, moderator of the English-language debate in the 2021 federal election, set off indignant responses in Quebec and increased the vote share of the Bloc Québécois. Then someone finally lost a job over the law. Fatemeh Anvari, a third-grade teacher in an English-language school in Chelsea, Quebec was reassigned to a non-teaching position when she wore a hijab in the classroom. Adding fuel to the fire outside the province, Legault told a press conference “the school board should not have hired this person in the first place as a teacher, given Bill 21 … Quebec has made the choice of secularism and it must be respected.” English Canada finally noticed, and for the first time, federal politicians began to criticize Bill 21.
The debate surrounding Quebec’s Bill 21 tells us several things about the state of the Canadian constitution and Quebec’s role in Canada in 2021. First of all, now that 40 years have passed since its enactment, the shortcomings of the 1982 Constitution Act are becoming increasingly clear. Aside from the fact the Act and the failure of the Meech Lake Accord have made the Canadian constitution unamendable, the federal Charter of Rights and Freedoms has no legitimacy in Quebec. Quebec public opinion seems to support the overriding of the Charter, especially on questions involving identity and autonomy.
Secondly, Quebec has grown detached politically from the rest of Canada. The old joke about Quebec seeking “independence within a united Canada” has turned out to have some truth to it. Where there is little appetite presently for leaving Canada, Quebec society, and by extension Quebec politics, increasingly operates without reference to the rest of Canada. Public opinion in the rest of Canada, and to a lesser degree federal court decisions, have little impact on opinion within Quebec, and are largely treated as interference. Guy Laforest has written about Quebec’s “internal exile.” The future of Bill 21 will depend upon how it is accepted within Quebec. (Paul Wells notes that the use of the notwithstanding clause required the law to be renewed every five years, and thinks that the law is most likely to be amended at one of these quinquennial renewals.)
Thirdly, the Bill 21 saga reminds us of the different conceptions of liberalism in Quebec and English Canada. Are Quebec nationalism and its approach to secularism illiberal? Quebec is clearly a liberal society in which individuals exercise rights, but there is a strong current of communitarianism within Quebec liberalism. In a 1979 essay, Charles Taylor argued that individuals need a secure context that includes linguistic and cultural security in order to exercise their rights as individuals. That opens scope for collective rights and Quebec’s measures to protect the primacy of the French language. The question then becomes to what degree secularism becomes a collective right needed for individuals to function. While language laws attempt to guarantee the freedom to speak French, the secularism law, in practice, takes freedom away primarily from minority groups, specifically Muslim women, men who wear turbans, and those who wear Jewish dress. While Quebec’s language laws came from the Lévesque government, whose nationalism leaned left, Bill 21 has emerged in a context where Quebec nationalism has turned right and populist, and as such has echoes of Maurice Duplessis’ Padlock Law and measures that targeted Jenovah’s Witnesses during the 1950s.
While there was significant discussion of Bill 21 among English Canadian observers, every federal political party held its tongue. This is reminiscent of the initial reaction to the Meech Lake Accord in 1987, where many outside Quebec put aside reservations and accepted it for the sake of national unity. The pro-Meech front dissolved after the Supreme Court of Canada ruled against Quebec’s laws governing the language of commercial signage in Ford v Quebec (AG). The Quebec government enacted Bill 178, which overrode the decision using the notwithstanding clause. Public opinion in English Canada swung against the Meech Lake Accord and led to its rejection. The removal of a teacher under Bill 21 threatens to be a Bill 178 moment for the secularism debate that makes English Canadian criticism more vocal. However, the most damaging national unity crises in Canada come from English Canada using its numbers to override Quebec’s will. It is not clear how this could happen here, since Bill 21 is a Quebec provincial law and is protected by the notwithstanding clause. The most that opponents in other provinces can hope for is a Supreme Court finding that Bill 21 violates the Charter of Rights but cannot be invalidated. The real issue will be whether with time the law grows unpopular in Quebec.