François Legault's high-stakes game with the courts and Quebec's secularism law

The stakes around Quebec's secularism law have always been high, but somehow they've managed to become even higher in recent days. 

The law (Bill 21) has already altered the career choices of dozens, maybe hundreds, of aspiring public school teachers, prosecutors and police officers by barring them from wearing religious symbols at work.  

At the same time, it has become the focal point of a resurgent sense of Quebec nationalism, and played a significant role in the outcome of the recent federal election.

Now, as the law confronts the first of several legal challenges, its most ardent supporters have mounted a campaign that is testing the legitimacy of the judiciary itself.

The latest plot line centres on Justice Nicole Duval Hesler, chief justice of Quebec's Court of Appeal. Duval Hesler, along with two colleagues, heard an appeal last month of a lower court's refusal to temporarily suspend parts of Bill 21.

A decision is expected before the spring.

Sylvain Roy Roussel/CBC

The injunction is being sought by a group of plaintiffs — including the National Council of Canadian Muslims — who want the law frozen pending a court ruling on their more substantive legal motion, which challenges Bill 21's constitutionality. 

During last month's Appeals Court hearing, Duval Hesler suggested supporters of the law have a "visual allergy" to religious symbols. At one point, she also told the government's lawyer that "as a feminist, I have a hard time following your argument."

Her comments, according to La Presse, sparked concern within the government that the court was leaning toward granting the appeal, even though it's rare for Canadian courts to suspend duly enacted legislation.

The remarks also triggered a round of complaints to the Canadian Judicial Council, the body responsible for disciplining federally appointed judges.

The complaints were spearheaded by Frédéric Bastien, a history teacher who is little known outside conservative nationalist circles in Quebec, but has mused about making a run for the Parti Québécois leadership.

Bastien's complaint alleges Duval Hesler's comments were evidence of bias. He surfaced past comments Duval Hesler made in support of multiculturalism and pointed to a scheduled talk before a group of Jewish lawyers, involved in a separate Bill 21 challenge, as further evidence of his claim.


Other interested parties have since followed Bastien's example. The Canadian Judicial Council said last week it had received around 50 complaints about Duval Hesler.

It is expected the Court of Appeal will issue its decision about the injunction before the judicial council has a chance to weigh in on the complaints against Duval Hessler.

In the meantime, Bill 21's supporters appear intent on casting as much doubt as possible on the chief justice's motives; a pre-emptive strike against what would be a serious legal setback. 

A 'worrying attitude?'

Premier François Legault's initial response to the complaints was to steer clear of the ordeal, pleading the need to respect the separation of powers.

But as the controversy dragged into its second day, he expressed sympathy for those questioning Duval Hessler's neutrality. 

"Certainly to maintain public trust requires impartiality and the appearance of impartiality," Legault said. "So I understand that some Quebecers are preoccupied about what the judge said."

Court of Appeal of Quebec

This threatens to put his justice minister, Sonia LeBel, in a difficult position. As attorney general, and thus a party in the dispute, she can ask for Duval Hessler's recusal.

Doing so with anything short of a rock-solid case of bias would invite accusations of meddling in the judiciary — not a good look for a democracy.

Legault, though, upped the stakes even further by declaring: "We'll let the judiciary deliver its judgment and, after, we'll take the necessary steps to ensure [Bill 21] is applied."

Now, Legault may simply have said his government will adapt the law to whatever conditions are imposed by the courts.

Others were less sanguine in their reading. They wondered if Legault was signalling his intent to ignore an unfavourable court decision.

"Why is [Legault's] attitude worrying? Because we know what kinds of governments ignore court decisions that are based on a country's constitution," André Pratte, recently retired senator and well-known federalist, wrote on Twitter.

The premier had a chance to clarify things the following day. He opted to remain in the grey zone.

"The government will do everything possible to protect Bill 21," Legault told reporters on Wednesday.

What did that mean, he was asked. "We're not ruling anything out," Legault replied.

It was a response cheered by the PQ and the conservative-sovereigntist commentariat, who have been valuable allies of the government on Bill 21. 

Their support is integral to Legault's claims the law enjoys "consensus" support. But they, of course, have a different endgame when it comes to the federation.

Federally appointed judges, applying a Constitution that Quebec didn't sign, invoking a charter they consider illegitimate — the prospect of Bill 21's defeat at the hands of the court has become central to recent sovereigntist arguments for an independent Quebec. 

Legault, a one-time PQ cabinet minister, has assured voters his sovereigntist days are behind him. And in his first year as premier, he's demonstrated his new nationalism is more than mere bluster; it's come with a concrete policy agenda.

But it's not yet clear what this new nationalism means for the courts and the Constitution. Where on the spectrum, between the high suspicion of conservative sovereigntists and the deep respect of the Quebec Liberals, does the Legault government see itself?

As the courts begin delivering verdicts on Bill 21, we're about to find out.