Quebec Premier François Legault’s landslide second mandate seems to have ratified his controversial targeting of both minority language and religious rights in the province. Within a larger global context of systematic assaults on human rights, Legault’s efforts to disrupt Canada’s democratic status quo, especially with a new Alberta premier adopting similar tactics, seems ominous. David Johnston, longtime journalist and former Quebec representative of the federal Commissioner of Official Languages, breaks down the political and legal angles of the story.

David O. Johnston

If the October 3rd Quebec election proved one thing, it was that the Coalition Avenir Québec (CAQ) breaking of the longstanding Liberal (PLQ)-Parti Québécois (PQ) duopoly in Quebec provincial politics four years ago was not an anomaly.

Premier François Legault’s party even won more seats (90 of 125) and a greater share of the popular vote (41.0 percent) than it did in 2018 (74 seats, and 37.4 percent).

And it did so despite a more competitive playing field than in 2018. A right-wing upstart, the Parti conservateur du Québec, unrelated to the federal party, took 13.9 percent of votes, up from 1.5 percent in 2018.

The big losers were three opposition parties who were in the last legislature — the Liberals, the PQ and Québec Solidaire (QS). All three got fewer votes, and a smaller share of the popular vote, than they did in 2018. Support ranged from a high of 15.4 percent for QS to a low of 14.3 percent for the Liberals. However, the concentration of Liberal support in western Montreal gave the party 21 seats, vs 11 for QS, mostly in eastern Montreal, three for the PQ, and none for the Conservatives. 

The disparity in seat distribution saw renewed calls in Quebec for electoral reform. But Legault, not surprisingly, said that was not going to be a “top priority” for his new government.

In the days after the election, he made it clear what his top priorities were. He named two, and underscored that both were going to present positioning challenges for parties at the federal level.

His first priority, he said, was immigration, the issue that dominated the Quebec election campaign. Legault wants the federal government to transfer two new powers to Quebec — powers of selection over the family-unification class of immigrants, and of temporary workers. On the last day of the campaign, the premier said he was considering holding a referendum on the issue in Quebec, something he had ruled out the previous spring. Three days after the election, he hinted again at a referendum, saying obliquely: “If Quebecers want the government of Quebec to have more powers in immigration, nobody is going to be able to resist that.” 

The second priority, he said, relates to language. Quebec passed new legislation in May, Bill 96, that among other things has modernized the Charte de la langue française, aka Bill 101. Bill 101 in its original form, introduced in 1977, respected federal jurisdiction and never sought to apply to federal operations in Quebec, including private companies under federal regulation – e.g., banks, telecommunications and inter-provincial transport companies. However, Bill 96 — the language bill which, as with Bill 21 restricting the rights of government workers to wear religious garb in the workplace, saw Legault invoke the notwithstanding clause of the Charter of Rights and Freedoms— has amended the language charter to assert that “all enterprises” in Quebec must now comply.

At public hearings last fall on Bill 96, Justice Minister Simon Jolin-Barrette said “all enterprises” included companies in the federally regulated private sector. Ginette Galarneau, president of the Office québécois de langue française (OQLF), testified at the hearings that there are 3,000 federally regulated companies in Quebec, only 240 of which have registered voluntarily with the Office since 1977, including only 189 that have obtained their francization certificates.

This is an issue that I watched very closely in the year before my retirement from the federal Office of the Commissioner of Official Languages this past July. I served eight years as the commissioner’s regional representative in Quebec and Nunavut, supervising an office of five people in Montreal.

In the weeks before my departure, it became clear to me that Quebec’s ambitions were more far-reaching than just the private sector. In mid-July, our Montreal office was contacted by Aéroports du Québec, the third-party agency contracted by the federal ministry of transport to run the Quebec City airport on its behalf. We were shown a letter it had received from the OQLF, dated July 5th, instructing the airport authority, which is legally subject to the federal Official Languages Act, to register with the Office within six months (January 5, 2023). Days later, I learned that Aéroports de Montréal had received a similar letter. The Montreal airport authority’s lawyers had concluded that the government of Quebec has no legal authority to take linguistic control over federal airports. That is the consensus legal opinion of experts who I have consulted.

Three weeks after he was elected Conservative leader in August of 2020, Erin O’Toole raised the stakes on this issue when he met with Legault and said the party now supported putting the federally regulated private sector under Quebec’s controls. That promise by O’Toole meant that all three oppositions parties, including the New Democrats and Bloc Québécois, now supported breaking with the legal principle of equality of status of English and French in federal operations, at least in Quebec. And it meant that any private member’s bill tabled to facilitate such a handover to Quebec would pass, no matter how MPs in the minority Liberal government voted.

This was an uncomfortable position for the Liberals, and so a month after O’Toole’s pledge, the throne speech of September of 2020 broke new ground, with the Liberal government expressing an intention to promote French not just outside Quebec, where francophones are a minority, but inside Quebec, too.

It followed up on that speech up with Bill C-32, a proposal to modernize the Official Languages Act (OLA). As part of the modernization, C-32 proposed creating a new section to extend language-of-service and language-of-work rights to the federally regulated private sector — but only French-language rights, on the grounds that French, not English, is threatened both in Quebec and the rest of Canada. As it is now, the OLA only applies to the federal public and para-public sector, as well as Crown corporations and some former Crown corporations such as Air Canada and Via Rail.

C-32 died on the order paper before the 2021 federal election but was brought back in slightly different form in March of this year, as Bill C-13. The main difference is that C-13 proposes to deal with the federal private sector in a new separate law, thus preserving the notional equality of status for English and French in the OLA. C-32 is currently undergoing public consultations by the House of Commons Standing Committee on Official Languages, and a “pre-study” by the Senate OL committee. Like C-32, C-13 proposes that the new rules on language would apply everywhere in Quebec, as well as in regions outside Quebec where there are high concentrations of francophones.

Although C-13 provides no rights for English, it does leave room for companies in Quebec to use English on a discretionary basis. To be sure, it’s a better deal for Quebec anglophones than anything under the new Bill 101 as created by Legault’s Bill 96. But Quebec’s English-speaking community leadership is still dead set against C-13 and its fundamental break from the principle of equal legal status for English and French. The Quebec Community Groups Network — the principal English-language rights advocacy voice in the province — has warned that the loss of English-language rights in the federal private sector would be a slippery slope; that Quebec wouldn’t stop there. Those two airport letters suggest they are right.

The Quebec election was a painful one for the anglophone community. QCGN sent letters to the main political parties, asking them for answers to a variety of minority-rights questions. Only the Liberals responded. Premier Legault, who also holds the title of minister responsible for relations with English-speaking Quebecers, refused to meet at all with QCGN, or even the editorial board of the Montreal Gazette. The cordiality he had shown in 2018 was now gone. I was reminded of something that my former boss, former Commissioner of Official Languages Graham Fraser, wrote in Policy Magazine in 2018, just before the Quebec election that year. In that article Fraser, then working as a journalist, described covering Legault’s first speech to his riding association back in 1998 and hearing Legault describe how he had grown up with anglophones in Montreal’s West Island and how, “I hate them as much as you do.”

In the last week of the Quebec election campaign, there was a revealing development on Parliament Hill relating to Quebec and language. MPs were called to vote on Bill C-238.

This private member’s bill brought forward by Bloc Québécois MP Claude de Bellefeuille contains a provision to ensure that “any federal work, undertaking or business operating in Quebec is subject to the requirements of the Charter of the French Language.” In other words, not just the federally regulated private sector, but the public sector, too. NDP MPs voted in favour of the bill, as did Bloc MPs. It’s not clear whether the NDP realized going into that vote that the concluding paragraph of the new Bill 101 as amended by Bill 96 is where Quebec invokes the notwithstanding clause, meaning the party voted to approve the pre-emptive use of the notwithstanding clause to suppress minority rights.

There was some suspense as to how the Conservatives would vote. After all, O’Toole had made a promise, but the party had a new leader – Pierre Poilievre, who had won the leadership just three weeks earlier. As it happened, the Conservatives voted no, as did the Liberals, so C-238 was defeated. But the Conservative no was a tepid one. Party official languages critic Joël Godin explained, “Let’s just say that a private member’s bill is much weaker than a government bill.”

Whether Canadians outside of Quebec care at all about C-13 or language is questionable. During the time that I spent at the Office of the Commissioner, there was a sense internally that the country is changing, that multiculturalism has become more important to Canadians than official languages as a defining national value. Many of my colleagues had come to believe that Bill 21 — containing the restrictions on what public servants can wear — represents a far greater potential threat to national unity than Bill 96.

There is some evidence for this. The government of Manitoba has pledged to intervene against Bill 21 in the Supreme Court, while the cities of Winnipeg and Toronto, among others, have voted to help fund the plaintiffs. By contrast, opposition to Bill 96 has been quite mild, although public opinion could change as court challenges to that law as well rise up to the SCC.

Bill 21 will be the first of the two pieces of legislation to reach the high court. The Quebec Court of Appeal has reserved the weeks of November 7th and 14th to hear two different appeals of the Quebec Superior Court Bill 21 ruling from April 2021. Most likely the SCC will hear its own appeal in 2024, a year ahead of the scheduled 2025 federal election.

What Bills 21 and 96 have in common is the pre-emptive use of the notwithstanding clause. In his ruling on Bill 21, Quebec Superior Court Justice Marc-André Blanchard said the law is unconstitutional but valid nonetheless, given Quebec’s use of the notwithstanding clause. However, Blanchard raised several questions about the clause, including its pre-emptive use, that appeal court judges are expected to address. In May of this year, federal Justice Minister David Lametti announced the Liberal government had decided that it will, after all, intervene in the Bill 21 appeal, once it reaches the SCC.

From a Quebec nationalist perspective, pre-emptive use of the notwithstanding clause in Bills 21 and 96 is intended as a unilateral declaration of autonomy within Canada for Quebec, at least on issues relating to identity. Close readers of Policy Magazine will have noticed that former primer minister Brian Mulroney had nothing good to say about the clause in an interview with editor L. Ian MacDonald in the September-October issue.

But Mulroney isn’t the Conservative leader anymore, Poilievre is. O’Toole may have promised Legault that a Conservative government led by him would not intervene in the courts against Quebec on Bill 21. On the other hand, an important Conservative value is at stake – freedom of religion. How the Poilievre Conservatives position themselves on Bill 21 will bear watching.

But here’s the takeaway:

Twice since 1980 there have been referendums in Quebec to take Quebec out of Canada. Now there’s a government in Quebec working to take Canada out of Quebec.

Suddenly, it’s not just Quebec anymore. 

For the new premier of Alberta, Danielle Smith, inspired by the Legault government, is pledging to do the same thing with her new “sovereignty” bill.

And, in a wider political context in which democratic disruption has become a strategic value all its own, the real target seems to be the power of the Canadian government.    

Contributing Writer David Johnston served as Regional Representative in Quebec and Nunavut of the federal Commissioner of Official Languages from 2014 to July 2022. Previously, he worked at The Montreal Gazette for 33 years, concluding as editorial page editor.