April’s Bill 21 ruling
strikes a blow to Bill 40

Premier Legault plays ball with the politics of division to further his nationalist agenda

By Irwin Rapoport

The Bill 40 case, which is challenging the legality of the CAQ government’s legislation that seeks to eliminate the constitutionally protected English school boards in Quebec, was hit with an October surprise via the April 19 Superior Court ruling on Bill 21 that added new fuel to the fire and backed the argument being put forward by the Quebec English School Board Association (QESBA), which represents the nine English school boards.

Justice Marc-André Blanchard, in his 242-page ruling, pointed out that Quebec’s secularism legislation exempted the English Montreal School Board, one of the challengers of the law, and by extension, all of the English school boards and members of the National Assembly.

The CBC, in its report on the ruling, stated, “Quebec’s secularism law violates the basic rights of religious minorities in the province, but those violations are permissible because of the Constitution’s notwithstanding clause… But the ruling by Justice Marc-André Blanchard also declared that the most contentious parts of the law – the religious symbols ban for many government employees – can’t be applied to English schools. The desire of English school boards to foster diversity by choosing who they hire is protected by the minority-language education rights in the Charter of Rights and Freedoms,” Blanchard said in his decision. Crucially, that section of the charter (23) is not covered by the notwithstanding clause.”

Justice Marc-André Blanchard… pointed out that Quebec’s secularism legislation exempted the English Montreal School Board… and by extension, all of the English school boards and members of the National Assembly.

The ruling was released just after the QESBA concluded its testimony and was awaiting the hearing of final arguments for the Bill 40 case.

Premier Francois Legault, who describes himself as a “nationalist,” reacting to the ruling the next day, was extremely angry, to say the least, and stressed his disapproval with a refusal of being challenged, and for people to hold views contrary to his vision and what he claims is the position held by the French Canadian collective. In fact, his comments created needless division and set up an “us versus them” situation.

Stated The Gazette, “Premier François Legault has described a Superior Court judgment Tuesday exempting the province’s English school boards and MNAs from Quebec’s state secularism law as illogical.”

Commenting on the ruling shortly after, Justice Minister Simon Jolin-Barrette announced Quebec’s plan to appeal it, “Legault said he doesn’t see the link the judge does between Section 23 of the constitution protecting minority language rights and secularism.”

At a press conference, Legault said, “I am disappointed in this ruling – I find it illogical. It’s as if secularism and values can be applied differently to anglophones than francophones. I don’t understand why the judge said anglophones in English school boards can have different values than the other Quebecers. I think we cannot divide Quebec in two. We need one Quebec, with one set of common values.”

According to The Gazette article, Blanchard “declared several sections of the bill are ’inoperative’ because they would violate Charter protections of minority language educational rights. The bill would therefore be inoperative to other English school boards.”

‘… Bill 40 is a pure exercise in politics over law, which is not only divisive but takes away resources from the public education system that could benefit from a serious infusion of cash.’

Legault and the CAQ know full well that the English school boards have constitutional protections to exist and for the English community to manage and control its schools and educational infrastructure. Thus Bill 40 is a pure exercise in politics over law, which is not only divisive but takes away resources from the public education system that could benefit from a serious infusion of cash.

It would have been excellent had the justice ruled Bill 21 as unconstitutional for violating freedom of religion and expression guarantees but we’ll see how the Quebec Court of Appeals and the Canadian Supreme Court take on the use of the notwithstanding clause to violate fundamental rights in the Canadian Charter of Rights and Freedoms.

However, without question, the QESBA and the English community will take the silver lining. We shall see how the Bill 21 ruling impacts the Bill 40 ruling.

Bill 21 should never have been passed. The federal government should have intervened immediately to have the Supreme Court review the law as a reference case. It was shameful that the Liberal Party, Conservative Party, New Democratic Party (NDP) and Green Party, while decrying the legislation, refused to call for a federal government intervention to protect the individual rights of millions of Quebecers.
The final arguments for the Bill 40 case have not been presented yet but a CTV News report from April 19 focused on QESBA wrapping up its arguments.

Bill 40, passed in February 2020, has already eliminated the province’s French school boards and replaced them with government-controlled Service Centres. The CTV report quoted Russell Copeman, QESBA’s Executive Director, who said that Bill 40 “transfers power to the minister and the ministry, it diminishes the autonomy and independence of school boards… It disenfranchises large swaths of the Anglophone community from being elected to the boards of directors of these new service centres.”

‘[Bill 40] transfers power to the minister and the ministry, it diminishes the autonomy and independence of school boards… It disenfranchises large swaths of the Anglophone community from being elected to the boards of directors of these new service centres.’

Russell Copeman, Executive Director, QESBA

Copeman has been making strong points in the defence of the school boards for the past few years and is effectively shining a light on why they are protected. But what was interesting is how CTV reporter, Stephane Giroux, described the government’s case. He stated, “Government lawyers have repeated arguments put forth by the Francois Legault administration since the law was adopted, saying school board elections have low participation rates.”

This is crucial because successive provincial governments, led by the Quebec Liberals and Parti Quebecois, have deliberately been removing parents from the English school board electors list upon the graduation of their children from high school and placing them on the French school board voters list. The students who graduated were also placed on the French list. This has disenfranchised thousands of people in the English community who have to submit requests to be placed back on the English voters’ list to participate in the school board elections. Here is a link for the form via the EMSB web page.

Elections are being held at several school boards. We must have a strong voter turnout to demonstrate to Legault that we do care about our school boards.

Despite provincial government actions to limit the number of voters, in the 2014 English school board elections, the turnout was between 15 and 18 percent. It could easily have been higher, and it is crucial to note that in the 2017 City of Montreal municipal election, the turnout was just above 42 percent. Moreover, some provincial by-elections only had turnouts of 18 to 20 percent of the eligible voters. Legault is being very selective in his use of statistics, which should concern all.

Just as the use of the notwithstanding clause protected most of Bill 21, Legault made it perfectly clear that he has no hesitation in using the clause to shield his government’s bill to strengthen Bill 101 from legal challenges, which is expected to be presented in May before the end of the current parliamentary session.

‘With Bills 21 and 40 and the anticipated bill to strengthen the Charter of the French Language, the CAQ government is sadly doing its best to divide Quebecers at a time when we are experiencing a serious pandemic that has taken the lives of over 10,000 residents…’

An April 22 Gazette report noted that “Premier François Legault says Quebec will almost certainly use the Constitution’s override clause to shield soon-to-be-tabled reforms to the Charter of the French Language from legal challenges… Legault said that first brush with the courts showed him there is a clear conflict between what Quebec wants to do to protect its language and culture, and clauses in the 1982 Constitution that Quebec never adhered to.”

Said Legault, “With the judgment, we have this week about Bill 21, it’s clear that the (court’s) interpretation of the Canadian Constitution – that we didn’t sign – sometimes gives us answers that don’t represent what the majority of Quebecers want.”

He then doubled down, states the article, “I don’t want to scoop our announcement,” Legault said when asked if Quebec will use it again for reforms to Bill 101. “It can’t be excluded. It means we can use it. There’s a good chance we will use it.”

With Bills 21 and 40 and the anticipated bill to strengthen the Charter of the French Language, the CAQ government is sadly doing its best to divide Quebecers at a time when we are experiencing a serious pandemic that has taken the lives of over 10,000 residents of “la belle province,” brought tragedy to thousands of families, led to the closure of thousands of businesses and brought financial hardship to far too many people, and has disrupted the lives of millions, bringing needless stress.

What we need is a premier and a provincial government that brings people together and finds solutions so that we can all recover from the COVID experience as one. The politics of division have no place in these trying and troubling times. We are capable of better. This is the perfect opportunity for Quebecers of all stripes and languages to reject division and nationalism and find a harmonious way to co-exist.

Disclaimer: The opinions expressed in this article are those of the author and do not necessarily reflect the opinions of WestmountMag.ca or its publishers.

Feature image: Dannykronstrom, CC BY-SA 4.0, via Wikimedia Commons

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Irwin Rapoport is a freelance journalist and former school commissioner with the Protestant School Board of Greater Montreal (1990-1994). He is currently a candidate in Ward 3 for the English Montreal School Board elections.