You don’t have to be a fan of Shirley Bassey to know that history—especially its most ignominious entries—tends to repeat if not rhyme. There have been many moments since Coalition Avenir Québec Leader François Legault became premier of Quebec in October of 2018 that have evoked his conservative populist predecessor, Maurice Duplessis. As Graham Fraser writes, the enacting of Bill 21 has been one of them. 

Graham Fraser

Last October, Quebec Premier François Legault met Serge Savard, one of the pillars of Les Canadiens when the team was winning Stanley Cups. In addition to lamenting that the team no longer had a monopoly on Quebec hockey players, Legault made an allusion to Savard’s preferred party, the old Union Nationale—the conservative nationalist coalition created by Maurice Duplessis that dominated Quebec politics after the Second World War. 

“Now it’s called the CAQ,” Legault quipped, referring to his own coalition party, the Coalition Avenir Québec.

It was hardly a joke; the CAQ bears a remarkable similarity to the Union Nationale: a coalition between conservatives and nationalists with a rural and small-town base that had virtually no support in Montreal, fought for Quebec autonomy but not independence, was contemptuous of universities and vilified religious minorities.

At times, it seems as if Legault and his ministers ask themselves “What would Duplessis do?” when faced with a policy decision.

To begin with, the electoral map produced by the 2018 Quebec election is almost a replica of the Union Nationale electoral base: a sea of CAQ blue interrupted by a peninsula of Liberal red up the Ottawa River and across the island of Montreal (with the exception of two seats in Montreal’s east end).

Duplessis encouraged the election of 50 Progressive Conservative MPs in 1958, who became part of the sweeping Diefenbaker majority. Legault has looked on benevolently as Yves-François Blanchet leads a group of 32 Bloc Québécois MPs to Ottawa, depriving Justin Trudeau of a Liberal majority.

Duplessis exercised his power over universities, insisting that dissident academics be fired or transferred, and refusing federal funding for post-secondary education.

Legault did his best impression of Duplessis when there was a massive outcry against the abolition of the Programme de l’expérience québécoise, which allowed foreign university students to acquire residency in Quebec, and its replacement with a dramatically smaller program. Before he reversed himself, he snarled that university presidents were simply complaining because they wanted the money those students brought, and business leaders only wanted cheap labour.

The most embarrassing case, which made the front section of The New York Times and headlines around the world, was when a doctoral student from France was refused a residency permit because one of the chapters of her PhD thesis for Université Laval was written in English. After mockery unmatched since the Pastagate scandal—when a restaurant was found in contravention of the Charter of the French Language for having pasta on its menu rather than using the French word “pâtes”—the decision was reversed.

Duplessis used his power to arrest Jehovah’s Witnesses and take away the liquor licence of a restaurant owner, Frank Roncarelli, who had provided funds to bail them out.

McGill law professor F. R. Scott challenged him, taking the case to the Supreme Court and winning.

Legault’s echo of this is Bill 21, the Laicity Act, which for-bids government employees, including teachers, from wearing anything that displays religious affiliation. Despite the fact that the government used the notwithstanding clause of the Charter of Rights and Freedoms to exempt it from a Charter challenge on the grounds of religious freedom, legal and equality rights, the question of the law’s constitutionality is now before the courts.

The English Montreal School Board (EMSB) has chosen to intervene on Article 23 of the Charter, which deals with the criteria for access to minority language education, and Article 28, which deals with rights guaranteed equally to both sexes. The notwithstanding clause does not apply to either language rights or gender equality. 

Article 28 is very clear: “Notwithstanding anything in this Charter, the rights and freedoms referred to in it are guaranteed equally to male and female persons.”

In its statement of claim, the EMSB argues that the Act exercises “an illegitimate control of the right to management and control of English language school boards in Quebec, regulates the cultural setting of English-language education, and interferes with the cultural concerns of Quebec’s English-speaking community.”

Furthermore, the statement continues, the Act “specifically targets and has a disproportionate effect on women, specifically Muslim women wearing the hijab.”

It is worth noting that in Bill 40, his legislation to abolish school boards, Legault has made an exception for English-language school boards, implicitly acknowledging that the Supreme Court’s Mahé decision guarantees the rights of language minorities to control their school boards. And his use of the notwithstanding clause was an indication that he wanted to avoid a court challenge. No such luck.

During the federal election, Legault declared that federal leaders should commit themselves to not intervening in the case, and Justin Trudeau was the only one to point out that the federal government has an obligation to examine every case that goes to the Supreme Court, and left open the possibility that his government would intervene.

There is a long history of Liberal prime ministers being asked to intervene on—or use the federal power of disallowance against—legislation passed by provinces.

When Ontario Hydro was created in 1909, there was a petition for disallowance from a group of private investors who argued it was unconstitutional. Wilfrid Laurier’s response, in a letter to a prominent Liberal businessman who had interests in the Electrical Development Company was this: “The local legislature has certain powers vested in it. These powers may be abused, but we have always held that the remedy was not in the exercise of the power of disallowance in Ottawa, but by the people of the Province themselves.”

This was almost exactly what Pierre Trudeau said in response to the Protestant School Board of Greater Montreal, which had begged him to disallow Robert Bourassa’s language legislation, Bill 22, in 1974.

Both those cases, of course, were before the introduction of the Charter of Rights and Freedoms in 1982. The federal power of disallowance is considered by many to have shrivelled through lack of use (It has not been used since 1943, but most dramatically in 1938 when the federal government disallowed Social Credit legislation in Alberta governing credit), and it is highly unlikely that the federal government will use it now.

However, intervening on a Charter case is a different matter. 

The storm of public disapproval over the reckless abolition of the foreign student residency program, and Legault’s churlish reaction to it before reversing himself has been widely seen as the end of a year-long honeymoon. 

In addition, it has damaged the reputation of the cabinet star and Minister of Everything (technically, he is Minister of Immigration, Francization and Integration, Minister Responsible for the French Language, Minister Responsible for Laicity and Parliamentary Reform and Government House Leader) Simon Jolin-Barrette—particularly when Denis Lessard of La Presse reported that public servants had warned him of the problems that would occur, but were ignored.

It became, as Radio-Canada host and columnist Michel C. Auger put it, a question of competence. And incompetence can be a fatal flaw for any government. 

Graham Fraser is a senior fellow at the Graduate School of Public and International Affairs at the University of Ottawa and the author of René Lévesque and the Parti Québécois in Power and Playing for Keeps: The Making of the Prime Minister 1988.