Quebec’s Bill 21: When Provincial Autonomy Threatens Minority Rights

On June 16, 2019, the National Assembly of Quebec passed Bill 21, The Act Respecting the Laicity of the State, as a declaration of Quebec’s “particular attachment to State laicity” and an affirmation that “the state is a lay state”. [1] Laicity is the constitutional principle of secularism and a lay state refers to the strict separation of religion from state governance. [2] The controversial bill prohibits public servants in positions of authority such as lawyers, teachers, and sheriffs from wearing religious symbols at their place of work.  Despite the unpopularity of Bill 21 among the Canadian voting public, with 59 percent of Canadian voters opposing the Bill, and multiple constitutional challenges from national organizations such as the Canadian Civil Liberties Association and the National Council of Canadian Muslims, The Quebec Court of Appeals and Supreme Court of Canada have dismissed all requests to suspend the Act. [3] [4] The passing of Bill 21 and the proceedings of Hak v. Procureure générale du Québec (2019) urge Canadians to consider the consequences of Quebec’s provincial autonomy and, ultimately, demonstrate the need for constitutional amendments to protect vulnerable minority groups against provincial legislature.

Despite the current controversy of Bill 21, the legal issues originate, in part, from the historically precarious relationship between the province of Quebec and the federal government. For over a century, Canada has struggled to address Quebec's constitutional concerns and its demands for sovereignty and increased recognition of its francophone population. As of 2016, only a mere 4 percent of the Canadian population identified as native French speakers whereas 79 percent of the Quebec population considered French to be their mother-tongue — exhibiting the stark linguistic and, inherently, cultural differences between Quebec and the rest of Canada. [5] These divisions were exacerbated in the creation of the 1982 Constitution, where the Canadian parliament, alongside ten provincial governments, agreed to significantly alter the Canadian Constitution.  The amendments included the entrenchment of the Canadian Charter of Rights and Freedoms into the constitution and modification of the constitutional amendment process. Major changes to the country’s structures of governance were enacted, however, without Quebec’s consent. The 1982 constitution explicitly recognized the multicultural character of the country, but “made no mention of the distinctive character of Quebec” — polarizing the 49 percent of Quebecois who voted for national sovereignty in a 1995 referendum and demonstrating the Canadian government’s lack of consideration towards Quebec’s pleas for a distinct society. [6] Thus, in hopes of remedying their relationship with Quebec, the federal government negotiated and passed the Meech Lake Accord (1987), which formally recognized Quebec as a “distinct society” with increased provincial autonomy on immigration, constitutional amendments, and the appointment of Supreme Court justices and senators. [7]

The new constitution granted premiers a much greater degree of provincial power with the creation of Section 33. Section 33, commonly referred to as the notwithstanding clause, allows provincial legislatures to temporarily override Section 2 fundamental, Section 7 legal, or Section 15 equality rights by declaring a law that operates “notwithstanding” to the Charter. [8] 

The clause was created to signify the leverage of provincial legislatures and was intended to be used during exceptional circumstances. However, in reality, several provinces, most notably Quebec, have invoked the clause numerous times to override the Charter. Provinces have attempted to invoke the clause to pass controversial legislation. For instance, Alberta invoked Section 33 to pass Bill 202, which sought to illegitimate same-sex marriage. [9]  Ontario invoked it to drastically reduce electoral districts prior to the 2018 municipal election. [10] Both attempts were eventually struck down by the Superior and Supreme Courts.

This is not the case for Quebec. After the 1982 enshrinement of the Charter, Quebec successfully invoked the clause to issue a blanket declaration that authorized all its legislation to operate notwithstanding the CharterThen again, after the Supreme Court ruling of Ford v. Quebec (1988) that declared Quebec’s French-only sign law a violation of freedom of expression, the National Assembly of Quebec employed section 33 to pass Bill 178 — overriding the SCC decision and maintaining unilingual French public signs. [11] [12] Despite the clear constitutional violations present in both cases, neither the Superior nor Supreme Courts intervened to override the province’s enactment of the clause. 

The debate surrounding Quebec’s sovereignty and “distinct society” has been, and still is, a delicate topic that the federal government is reluctant to address.  Fearful of reigniting the dangerous hostilities of the late 20th century Quiet Revolution, the federal government provides Quebec with a greater degree of autonomy and leniency in terms of provincial jurisdiction and legislature. However, with the introduction of Bill 21 and the controversial proceedings of Hak v. Procureure générale du Québec (2019), Canadians are concerned that the nature of Quebec’s autonomy unjustifiably threatens individual rights and freedoms. 

In Hak, Ichrak Norel Hak sought to suspend the application of Sections 6 and 8 of Bill 21, filing a suit alongside those previously brought by the English Montreal School Board and the Canadian Civil Liberties Association. Section 6 details that all public workers are prohibited from wearing religious symbols while exercising their functions and section 8 states that all persons who provide or receive a public service “must have their face uncovered”. [13] The plaintiff argued that the Act is invalid and unconstitutional on the basis of two main reasons: the vagueness of certain aspects of the Act violates the rule of law and the Act violates Sections 3, 10, and 28 of the Constitution — denying members of society the right to actively participate in certain public institutions.  [14] [15]  The plaintiff, Ichrak Norel Hack, a student at the Université de Montréal who hopes to pursue a career as a French teacher, stated that wearing a hijab is in accordance with her religious beliefs and that Bill 21 is “forcing [her] to choose between [her] dream and the preservation of [her] identity.” [16] She argued the Act is discriminatory towards Muslim women and that permitting its Sections 6 and 8 to remain in force would cause irreparable harm to religious minorities by preventing them from accessing public services or taking up government employment. [17] Yet, despite the plaintiff's compelling argument , Superior Court Judge Michel Yergeau objected to the grounds of her case and dismissed it due to the precedent set in Manitoba (P.G.) v. Metropolitan Stores Ltd., 1987 (SCC). [18] In Manitoba, the court established that in order for a party to seek a stay of legislation pending a challenge to its constitutionality, it must show that the applicant will suffer irreparable harm. Though Hak gave evidence that the 2019 Act had damaged her career prospects and fuelled anti-Islamic sentiments among members of the public, Yergeau stated that such consequences failed to establish irreparable harm. In order to constitute irreparable harm, the applicant must demonstrate that in the absence of a stay, the impugned legislation would inflict harm that could not be compensated through monetary damages. [19] Thus, the case was dismissed, and the decision was upheld in both the Quebec Court of Appeals and Supreme Court of Canada.

The decision to dismiss Hak v. Procureure générale du Québec (2019) and uphold Bill 21 not only demonstrates the need for constitutional amendments to protect vulnerable minority groups against provincial legislature, but also exposes the dangers of Quebec’s special provincial autonomy. Though Quebec’s intention with Bill 21 was to establish religious tolerance, equality, and a distinct divide between church and state, the Act has become a coercive model that imposes neutrality and secularism on individuals. Given the failed attempts to invoke the notwithstanding clause in Alberta and Ontario, the Supreme Court’s decision to dismiss was unprecedented and, frankly, unforeseen. However, considering the federal government’s historical legal approach towards Quebec, the dismissal of Hak should not come as a surprise. From the 1987 signing of the Meech Lake Accords to the passing of Bill 178, the federal government has displayed a pattern of leniency towards Quebec. Though it is critical to respect historical precedent and provincial identity, the proceedings of the case reveal the plausible dangers of Quebec’s provincial autonomy and the threat it poses to individual liberties.

Edited by Beatrix Geaghan-Breiner

[1] National Assembly of Québec, Bill 21 (An Act respecting the laicity of the State), Introduced on March 28, 2019. http://www2.publicationsduquebec.gouv.qc.ca/dynamicSearch/telecharge.php?type=5&file=2019C12A.PDF

[2] Id.

[3] Majority of Canadians do not Approve of Québec Religious Symbols Law, Forum Research (2019) online at http://poll.forumresearch.com/data/38e93511-be10-4ba5-95b2-ccfa0b09714cRelgious%20Symbols%20July%202019.pdf (visited February 22, 2021).

[4] Supreme Court of Canada, Ichrak Nourel Hak, et al. v. Attorney General of Québec, Application for Leave 

https://decisions.scc-csc.ca/scc-csc/scc-l-csc-a/en/item/18262/index.do?site_preference=normal (visited June 19, 2021) 

[5] Jean‑François Lepage, Census in Brief: English, French and official language minorities in Canada, Statistics Canada (2017) online at https://www12.statcan.gc.ca/census-recensement/2016/as-sa/98-200-x/2016011/98-200-x2016011-eng.cfm (visited February 22, 2021).

[6] David R. Cameron and D. Krikorian Jacqueline, “Recognizing Quebec in the Constitution of Canada: Using the Bilateral Constitutional Amendment Process,” 58 The University of Toronto Law Journal 4, 391 (2008).

[7] “The Meech Lake Accord,” 30 Manitoba Law Journal 1, 40 (2003).

[8] Canadian Charter of Rights and Freedoms, sec. 33. 

[9] Legislative Assembly of Alberta, Marriage Amendment Act (Bill 202), Assented on March 23, 2000.

[10] Legislative Assembly of Ontario, Bill 31 (An Act to amend the City of Toronto Act, 2006, the Municipal Act, 2001, the Municipal Elections Act, 1996 and the Education Act and to revoke two regulations), Introduced on September 12, 2018.

[11]  Ford v. Quebec (Attorney General), 2 SCR 712, (S.C.C 1988). 

[12] Marc-André Roy and Laurence Brosseau, The Notwithstanding Clause of the Charter, Library of Parliament (2018) online at

https://lop.parl.ca/sites/PublicWebsite/default/en_CA/ResearchPublications/201817E (visited February 28, 2021).

[13] National Assembly of Québec, Bill 21 (An Act respecting the laicity of the State), Introduced on March 28, 2019. 

[14] Province of Quebec, District of Montreal, Superior Court, English-Montreal School Board and Ichrak Norel Hack, Application for Judicial Review and For Declaratory Judgement (articles. 49, 76, 141, 142 and 529(1) CCP), October 21, 2019, 

https://az184419.vo.msecnd.net/emsb/emsb-website/en/docs/2019-2020/2019-10-21-application-for-judicial-review.pdf

[15] Hak v. Procureure générale du Québec, 2145, (QCCA 2019).

[16] id.

[17] Kerri A. Froc, “Shouting into the Constitutional Void: Section 28 and Bill 21,” 28 Constitutional Forum 4, 19 (2019).

[18]  Hak v. Procureure générale du Québec, 2145, (QCCA 2019).

[19] id.