In an interview published on January 21, on the question of the scope of the parliamentary sovereignty provision (“notwithstanding clause”) of section 33 of the Canadian Charter of Rights and Freedoms, the Prime Minister of Canada affirmed that “a reference to the Supreme Court of Canada can be made, and I can tell you that our Minister of Justice, David Lametti, a former Dean of the Faculty of Law at McGill University, a proud Quebecer, is in the process of reflect precisely on the avenues available to us on this […] “.
If this avenue were to be chosen and the Supreme Court were seized of a request for a referral made under section 53 of the Supreme Court Act, we would in fact be witnessing a new attempt to instrumentalize the Supreme Court from Canada. In the particular case of section 33, recourse to the power to refer questions for opinion on “the interpretation of constitutional laws” or “the powers of the Parliament of Canada or of the legislatures of the provinces, or of their respective governments, independently of their past, present or future exercise” would clearly be dictated by a desire to modify the scope of section 33 of the Canadian Charter without engaging in the process of amending the Constitution of Canada provided for in the Constitution Act from 1982.
It is now clear that in the context of this type of reference to the Supreme Court of Canada, the Trudeau government would seek to obtain from this court an opinion according to which recourse to the provision of parliamentary sovereignty cannot deprive the courts, in a preventive manner , of the power to rule on the conformity of a law with the Canadian Charter.
This opinion would clearly run counter to it, as Anne-Sophie Robitaille and Patrick Taillon recently reminded us in an opinion piece published in The dutyof the judgment of the highest Canadian court in the case Ford v. Quebec (Attorney General), which validates the use of “the most preventive and the most systematic” of derogations, the provision of parliamentary sovereignty, enshrined in an omnibus law and all Quebec legislation, the day after the entry into force of the Constitution Act, 1982.
If it does not want to be exploited, the Supreme Court of Canada should refuse to answer the question that will be put to it on such preventive use by indicating that it is not justiciable because of its political nature. There should be no doubt that this is a question of a political nature since the expected answer is essentially intended to circumvent the obligation to proceed with an amendment to the Constitution of Canada and to apply the procedure applicable in the species.
Isn’t this very clearly a case in which the Court, to use the views expressed by the Court in the Reference re Secession of Quebec, would go beyond what it considers to be “the role which falls to it in the constitutional framework of our democratic form of government”.
Bearing this reference in mind, the government—and proud Quebecer Minister Lametti—should think twice before referring questions to the Supreme Court of Canada. The Minister of Justice Allan Rock — and his colleague Stéphane Dion — had very badly anticipated the answers that the Supreme Court would give to the questions before the judges and which the great French jurist Alain Pellet had moreover described as “an attempt too clairvoyant of political manipulation”. But the attempt is obviously very great to take the risk of leading the justices of the Supreme Court, five of whom were appointed by the government of Justin Trudeau, to formulate the answers that this government will have prompted them to ear.
Referring to the idea of making a request to the Supreme Court of Canada, Prime Minister Justin Trudeau also declared that “the idea of having a charter of rights and freedoms is to protect us against the tyranny of majority “. Should we not remind him that it was by the tyranny of a majority that the Canadian Charter of Rights and Freedoms was adopted, like the whole of the Constitution Act, 1982 enacted for Canada by the British law 1982 on Canada, against the will of Quebec and without the consent of its government, its parliament or its people. And to predict that this majority could express itself again, through the voice of the judges, to deprive of scope the only article of the Canadian Charter which allows Quebec to say no to this tyranny.
And does he not have to tell him, loud and clear, that he is responsible, by virtue of the principle of “parliamentary sovereignty”, to the National Assembly of Quebec, as stated in the preambles of the Charter of the French language and the Act respecting the secularism of the State, “to confirm the status of French as an official language and a common language on the territory of Quebec as well as to consecrate the preponderance of this status in the Quebec legal order , while ensuring a balance between the collective rights of the Quebec nation and the rights and freedoms of the individual” and “to determine according to which principles and in what manner the relations between the State and the religions must be organized in Quebec”.
And that it is not up to the nine judges of the Supreme Court of Canada, or even barely five out of nine, to replace the representatives of the people of Quebec on these issues.