Qualified at the time of the adoption of the Canadian Bill of Rights in 1960 as “notwithstanding clauses” and presented during their inclusion in 1976 in the Quebec Charter of Human Rights and Freedoms and in 1982 in the Canadian Charter of Rights and freedoms such as “notwithstanding clauses”, clauses empowering a legislature to give primacy to the provisions of a law over these declaration and charter, whether of the Parliament of Canada or a provincial legislature, have recently been renamed “parliamentary sovereignty clauses”. Such clauses are included in these three fundamental laws and are also seen today as allowing legislatures to participate in the definition of fundamental rights.
Parliamentary sovereignty clauses
If the terminology has thus evolved and we wish to insert articles into laws declaring or expressly stating that one or more of their provisions apply “notwithstanding” or “despite” the declaration and charter, it is without doubt due to the fact that governments, and in particular the current government of Quebec, want the adoption of such articles to be part of an exercise of parliamentary sovereignty.
Thus, as part of the study of the bill on state secularism (bill no. 21) and recalling that this was not a first in the legislative history of Quebec, Minister Simon Jolin-Barrette affirmed that “ [l]he Quebec has[vait] used these provisions more than a hundred times since 1975, almost always preventively” and “that[a]ith Bill No. 21, [n]Not only will these provisions allow us to assert parliamentary sovereignty and define for ourselves a typically Quebecois secularism, but they will also allow us to legally secure Bill No. 21, and thus finally move on to something else. “.
A reference to the exercise of parliamentary sovereignty was also considered necessary in the context of the adoption of the Act respecting the official and common language of Quebec, French (bill no. 96). The minister recalled that “ [a]Throughout history, the Charter of the French language has notably been undermined […] » and that “in a subject as important for the Quebec nation, it is important to ensure that it is the will of the National Assembly, the will of parliamentarians, based on parliamentary sovereignty, to define what is the legislative regime applicable to the protection of French.
The definition of fundamental rights
When we resort to parliamentary sovereignty clauses, we may wonder what the legislator ultimately does with regard to the rights and freedoms guaranteed by the charters. For a very long time, measures taken pursuant to parliamentary sovereignty clauses have been characterized as a derogation from fundamental rights. Moreover, section 52 of the Quebec Charter uses the term “derogate” and the marginal note which accompanies section 33 of the Canadian Charter qualifies this article as a “notwithstanding provision”.
Borrowed from the terminology of international law and in particular from Article 4 of the International Covenant on Civil and Political Rights which provides that States may take measures “derogating” from these rights in the event that an exceptional public danger threatens the existence of the nation, this notion of derogation hardly seems appropriate. By resorting to parliamentary sovereignty clauses, the legislator does not seek to derogate from fundamental rights so much as to establish their scope and adjust their exercise, making its definition of rights prevail over that of the courts. We must also think that these courts, particularly in the Canadian context where the appointment of judges falls under the exclusive power of the government, should not have a monopoly on the definition of rights. From the angle of democratic legitimacy, we can also argue that it is not up to nine judges of the Supreme Court of Canada, or even barely five out of nine when judges express their dissent, to replace the legislator on these issues.
Faced with the imminence of a judgment from the Court of Appeal of Quebec in which the judges could wish to rule on the legality of the use of parliamentary sovereignty clauses, but also of the possibility that the government of Justin Trudeau submits to the judgment of the Supreme Court of Canada a question relating to the interpretation of section 33 of the Canadian Charter, it is important to reflect on the scope of the sovereignty clauses and to continue reflection on the past, present and future of the clauses of parliamentary sovereignty.
Note, the 12e conference of the Quebec Association of Constitutional Law will focus on this theme on Friday, October 20, 2023 at the Faculty of Law of the University of Montreal.