We celebrate, or hate, this week the 40and anniversary of the patriation of the Canadian Constitution and the coming into force of the Canadian Charter of Rights and Freedoms. Without Quebec’s agreement? Yes, which is still unacceptable. A “coup de force” of the federal government? Absolutely.
Posted at 6:00 a.m.
But are we adding more and more often “the government of judges”? Not really. In any case, it is an argument that the Lévesque government did not use at the time.
Firstly because, in all democracies, it is considered that an essential element of the rule of law is that the courts must have a role in monitoring the executive and the legislatures, especially in matters of fundamental rights, that the institution is called Supreme Court, Constitutional Council or something else.
But above all, if René Lévesque and his government were opposed to the federal Charter, it was because they felt that the Quebec Charter of Rights and Freedoms was superior to it. Among other things, because it was much easier to amend it.
A Charter which, it must be remembered, was adopted in 1975, so well before the Canadian Charter. Which still shows that Quebec had no lessons to learn in this regard.
Thus, shortly after the Parti Québécois came to power, Mr. Lévesque had the Quebec Charter amended to prohibit discrimination based on sexual orientation, the first government to do so in North America.
But that said, his opposition to what Mr. Lévesque called the Trudeau government’s “coup de force” remained unwavering. Thus, during the constitutional negotiations and before the November conference which was to endorse the repatriation, he had published a long open letter in The Press (October 25, 1980) which explained all his reluctance and which did not say a word about the draft Canadian Charter.
After the Canadian Charter came into force, the Lévesque government continued to improve the Quebec Charter. In 1982, at the request of Marc-André Bédard, its Minister of Justice, to include grounds for discrimination such as age, pregnancy or physical or mental handicap.
But above all, it ensured that the Quebec Charter applied to all Quebec laws, not just those that had been adopted before it.
Mr. Lévesque knew full well that federally appointed judges would be called upon to rule on the application of the Charter to Quebec laws. He did it anyway. It was not imposed by the federal government, it was done voluntarily by the Government of Quebec.
In fact, Mr. Lévesque believed so much in the superiority of the Quebec Charter that he very solemnly signed a copy of the Charter which was to be distributed and displayed in institutions such as schools, hospitals, and so on. There must be a few still on the walls today.
René Lévesque still had reservations about the powers that had just been given to the Supreme Court of Canada on matters of provincial jurisdiction such as civil law, property, language or education. But if he had objections on these matters of provincial jurisdiction, he had no complaints whatsoever about the fundamental rights and fundamental freedoms set out therein.
In any event, whether we are talking about the Canadian Charter or the Quebec Charter, the fundamental rights and fundamental freedoms protected therein are exactly the same.
In fact, the author of the Federal Charter, the former Deputy Minister of Justice Roger Tassé, said in his memoirs that he had two models for the Federal Charter, namely the Universal Declaration of Human Rights of the UN and the Quebec Charter.
This is how the Supreme Court judgment on commercial signage – which led the government of Robert Bourassa to invoke the notwithstanding clause (“notwithstanding clause”) – was rendered in accordance with the Quebec Charter. The decision would have been similar if it had been made on the basis of the Canadian Charter.
Today, we speak too easily and indiscriminately of “government by judges”, of opposition to the patriation of the Constitution by invoking the memory of René Lévesque. This is to insult the respect he has always had for fundamental rights.
Forty years after the entry into force of the federal Charter, it is time to recognize that, for the most part – and with the exception of the education in English of Canadians from other provinces – the two charters are practically identical.
It is also time for the Government of Quebec to treat the Quebec Charter with a little more respect. Thus, when Bill 21 was passed, the Charter was amended for the first time under closure and other than unanimously. Which was neither necessary nor desirable.
Still, Quebecers have no reason to fear the fundamental rights that are protected by the Quebec Charter. Our Charter.