Before relying on his father’s thoughts to condemn the presence of a notwithstanding clause, known as the “notwithstanding clause”, in the Canadian Charter of Rights and Freedoms, Justin Trudeau should consult the archives of the constitutional repatriation of 1982.
He would see that his father saw no objection in principle to the presence of this provision in the Canadian Charter of Rights and Freedoms so dear to his heart. Like Roger Tassé, the Deputy Minister of Justice responsible for drafting this charter, he saw it more as a way of protecting Canada from the government by judges which is rife in the United States.
Justin Trudeau would even find in these archives a letter to Cardinal Gerald Emmet Carter in which his father declared to the Archbishop of Toronto that if the Supreme Court dared to contradict a law duly passed by Parliament on abortion, he would not. would not hesitate to make use of the said provision to make the democratic decision of the elected representatives of the people prevail over the simple legal opinion of the judges.
The separation of executive, legislative and judicial powers was a principle sacred to Pierre Elliott Trudeau in 1982, and it was really his resentment against the Meech Lake accord that would later lead him to find scandalous the obligation placed on judges to take take into account the historical rights of Quebec in the interpretation of the rights and freedoms of individuals proclaimed by the Canadian Charter of 1982.
Yet it is this obligation imposed on judges by article 25 of the same charter with regard to the historic or treaty rights of Aboriginal peoples. To prove it, here is the wording of this article:
“The fact that this charter guarantees certain rights and freedoms does not infringe the rights or freedoms – ancestral, treaty or other – of the indigenous peoples of Canada, in particular: a) the rights or freedoms recognized by the Royal Proclamation of 7 October 1763; b) existing rights or freedoms resulting from agreements on land claims or those likely to be so acquired. “
Quebec did not demand more from Meech, but for Pierre Elliott Trudeau, asking judges to take into account the historical rights of the Indigenous peoples of Canada when interpreting the individual rights guaranteed by the Canadian Charter was a virtuous gesture, which became a sacrilegious gesture in the case of the people of Quebec.
In order to protect its collective rights against the government by the judges, Quebec therefore only had recourse to the “notwithstanding clause”. And for Trudeau at war with Meech, there was a loophole that absolutely had to be closed.
Even Tom Axworthy, the die-hard champion of individual rights, was against removing the notwithstanding clause. In this he echoed the views of the country’s most eminent constitutional scholars, beginning with the drafter of the Canadian Charter of Rights and Freedoms, Roger Tassé, and the well-respected Peter H. Russell, to name a few.
Between Trudeau, the sworn enemy of Meech, in 1990, and Trudeau, the protector of the historic rights of indigenous peoples, in 1982, Justin Trudeau chooses, in my eyes, the darker side of his father, that of blind anger against a Quebec without which Canada would never have been. As he wrote at the time of Cité Libre, a “multinational” federation 75 years ahead of the rest of the planet. A federation that Laurier described so aptly as the union without fusion of the founding peoples and the constituent provinces of Canada.