The most annoying thing with the defense of Prime Minister François Legault in the legal challenges to Laws 21 and 96 is that he is not claiming the right to defend them, but that he wants to be the only one to be able to talk about them.
Mr. Legault does not want the federal government to intervene in the cases and would like the Supreme Court to say nothing at all about the preventive use of the notwithstanding clause of the Canadian Constitution.
It is all the more strange since, under the current state of the law, the government and the National Assembly of Quebec are guaranteed to have the last word. The notwithstanding clause is part of the Constitution, it is sometimes debated, but it remains an essential compromise that allowed the passage of the Bill of Rights.
But having the last word does not mean being the only one who can speak.
Obviously, invoking the notwithstanding clause, whether preventively or not, constitutes an admission by a government that its legislation contravenes the Charter of Rights and does not respect certain fundamental rights.
It is easy to understand that the Legault government wants to defend laws that have raised controversy.
But it is hard to accept that these debates concern only him and that no one, neither the federal government nor the highest court in the land, would have the right to interfere.
Obviously, what the Legault government fears is that the Supreme Court will rule not only on the preventive use of the notwithstanding provision, but also on the merits of the case, namely the non-respect of fundamental rights. It is always a difficult message to review.
But the fact remains that the power to override a judicial decision has now been part of Canadian law for 40 years and it would be surprising if the Constitution could be amended on this issue.
By the way, it should be noted that even if we only wanted to prevent the use of the notwithstanding clause in a preventive way, it is more than likely that a constitutional amendment is needed and that neither federal intervention nor a decision of the Court supreme would have that effect. It would be very uncertain for Justin Trudeau to engage in a constitutional amendment procedure in the current circumstances.
But in Quebec itself, what is disturbing in the reaction of the Legault government to the possible intervention of the federal government or the Supreme Court in this case is the tone and the arguments of the reply.
We understand that there is an electorate that is sensitive to the arguments of the nation in danger and that any disagreement with the government of Quebec becomes a frontal attack against the Quebec nation of which the Legault government would, of course, be the only defender.
It remains, however, a big cannon shot for what is, in the end, only a disagreement over the use of a provision of the Constitution.
What is also deplorable is the opposition that the government would like to make between the defense of collective rights and individual rights. It’s an old duck that doesn’t fly very high anymore. In a free and democratic state, one is entitled to expect that the government respects both and can reconcile these rights rather than oppose them.
But beyond the legal framework, we find in this debate the unfortunate tendency of the Legault government to accept no criticism and to do as it pleases by not listening to anything or anyone.
Since coming to power, the CAQ government has almost systematically sought to eliminate anything that might look like a counter-power: abolishing school boards, emasculating the Régie de l’énergie and even amending the Quebec Charter of Rights and freedoms under gag order and, for the first time, without party consensus in the National Assembly.
Since its re-election, the Legault government has behaved as if it no longer had any accountability, and everything happens as if, once a decision is made in the Prime Minister’s office, and even before it is submitted to the National Assembly, it can no longer be changed and any discussion is useless.
The third link project has not yet been officially presented, the studies are not yet public, but everything is happening as if it were no longer a simple project, but a government policy.
In any case, it was already the “believe or die” of the CAQ candidates during the last election campaign.
More recently, the question of the construction of new dams has had the same treatment. The decision has already been taken by Mr. Legault, it is just that it has not yet been presented to the Council of Ministers.
When a Prime Minister has so little regard for the institutions, it is not useless to confront him with the judicial control of the decisions of the executive. One of the democratic guarantees of modern states.