The notwithstanding clause in the Canadian Charter was used to counter Bill 101

After his victory in the 1980 referendum, Pierre Trudeau launched the process of constitutional renewal. He wants to take the opportunity to insert a charter in the constitution. For what ? One of its objectives was to promote multiculturalism. The main goal, however, was to stop the francization of Quebec undertaken with Robert Bourassa’s Bill 22 and continued with René Lévesque’s Bill 101.

Pierre Trudeau wanted to make Canada a bilingual country in which Quebec would cease to embody the French-Canadian nation. This bilingualism was to be based, among other things, on the possibility for parents to have their children educated in the language of their choice. All the provinces would thus be bilingual, equal, and Quebec would no longer speak on behalf of francophones.

The Prime Minister stumbled over the fact that education was a provincial jurisdiction. Quebec had restricted access to English schools and Ottawa could not force English-speaking provinces to build French schools.

Justin’s father therefore wanted a charter to include new human rights invented from scratch: the fundamental right to go to English school in Quebec and French in the “Rest of Canada”. Ottawa would thus give the judges it appointed a new power, that of invalidating laws in the exclusive provincial jurisdiction under the charter. Before 1982, this kind of invalidation could only be done according to the division of powers. Law 101 was directly threatened.

At the same time, seven English-speaking provinces opposed the charter, while Ontario and New Brunswick supported it. Opponents worried that federal judges would get too much power. Parliamentary sovereignty, that is to say the exclusive power of elected officials to make or break all laws, was threatened. Many feared the impact of the charter on criminal law. This was going to help bandits to be exonerated more easily.

In short, Trudeau’s charter went too far. In November 1981, he realized he had to let go. He therefore accepted a derogation clause. It allows elected officials to protect a law that would be struck down by judges under the charter. Renewable every five years, the notwithstanding clause does not apply to “rights” in English and French education. This kept the door open for -the invalidation of Bill 101, as Trudeau -severely wanted. This is what led to Quebec’s refusal.

Having thus saved the essential in his eyes, Pierre Trudeau therefore defended the derogatory clause. This, he said, would make it possible, for example, to maintain the legality of abortion if the courts decided to prohibit the practice.

The cursed clause

The Lévesque government immediately invoked the notwithstanding clause, which failed to protect certain provisions of Bill 101 affecting access to English schools. In 1988, Robert Bourassa used the derogatory clause to protect the clauses of the French unilingual signage law.

Trudeau then launched a fatwa against the Meech Lake Accord, signed in 1987, which recognized Quebec as a distinct society. The use of the notwithstanding clause showed that Quebecers flouted rights and freedoms. The situation was going to be worse if Meech was adopted, which obviously did not happen after a vicious campaign of smearing the Trudeauists.

Quebec, which had not adhered to the 1982 Constitution, was guilty of using a clause inserted into it at the request of the English-speaking provinces! This crime was all the more serious because he wished to defend his existence as a nation.

Today, 80% of English Canadians are opposed to the use of the notwithstanding clause to protect Bill 96. This is of course what explains the maneuver of the Trudeau government before the Supreme Court. Once again, the Quebec national minority is put in the dock… even if it respects the rules of the regime that has been imposed on it!