Once a month, The duty challenges history enthusiasts to decipher a current theme based on a comparison with a historical event or character.
The renewal announced by the Legault government of the use of the derogation provisions of the Canadian and Quebec charters of rights and freedoms to protect the Law on State Secularism from challenges has aroused the usual outcry from the Canadian legal community.
The latter having still not understood that the notwithstanding provision is the element which allowed the birth of the Canadian Charter of Rights and Freedoms, it has attacked it every time it can for 40 years. However, this positioning still comes up against the illegitimacy of the Canadian charter, resulting from the patriation of the Constitution of Canada behind Quebec’s back.
More recently, jurists of Trudeauist ancestry who populate Quebec law faculties have also begun to criticize the use of the notwithstanding provision of the Quebec Charter of Human Rights and Freedoms, which would be in some way an affront to our democracy. They even went so far as to call René Lévesque to the stand as a witness for opponents of the exemption provision of the Quebec charter.
Québec solidaire also acted as a political relay for this positioning when it offered to the Legault government to support the use of the Canadian derogation provision, but not the Quebec one.
What would René Lévesque have thought of the use of the derogation provision of the Quebec charter with regard to the Law on State Secularism? To answer this question, we must take a detour through Lévesque’s view of the Canadian charter.
Useless and dangerous
In his autobiography Wait until I remember, Lévesque could not have been clearer. Not only does he describe the Canadian charter as “hypocritical verbiage”, but he also recalls that he was not the only one to have strong reservations, several other provinces having expressed reservations.
Lévesque even relies on these when he writes, “recalling that England could do without this legal straitjacket without violating people’s rights, our Anglo-Canadian counterparts were wary of this “government of judges” which we claimed to establish above parliaments”. “More rightly, since Quebec had its own charter of rights, I also shared this point of view. »
Likewise, two years before the patriation of the Constitution and the birth of the Canadian charter, René Lévesque launched, in an open letter to Quebecers published in the pages of Duty of October 25, 1980, a serious warning about the advent of a Canadian Charter of Rights and Freedoms. Lévesque uses two adjectives – shared by almost all provinces – to qualify Trudeau’s project: useless and dangerous.
Useless, firstly, because fundamental rights were already as well protected in Canada as elsewhere. Useless, also, because Quebec already had the “most advanced of all” charter in Canada, according to him.
Lévesque then goes on to explain that the dangerous aspect of the charter “fundamentally lies in the attribution to the courts — and ultimately to the Federal Supreme Court — of an entire vast area affecting employment, civil rights, property, language and education, where it is the competence of provincial parliaments which obviously remains the best line of defense and also the best instrument for progressing the rights of all.
Referees
Two elements emerge from his autobiography and this open letter. First, Lévesque considers that provincial governments are best suited to deal with questions of individual rights: Quebec being in his eyes a distinct nation, there is nothing surprising in this position, especially since Quebec already had its own charter.
Above all, Lévesque abhors the fact that the courts — whose judges are appointed by Ottawa — become the ultimate arbiter of issues which, according to him, are the responsibility of elected officials. For him, a government of judges is not necessary because Canada and Quebec already offer protection of rights and Quebec elected officials are in the best position to decide whether they wish to use the derogation provision provided for in the Quebec charter .
The rest is known. The National Assembly adopts the Act respecting the constitutional law of 1982, which applies the Canadian notwithstanding provision to all Quebec laws. It is the Minister of Justice Marc-André Bédard, close to Lévesque, who is leading the file.
During the parliamentary debates on this law, on May 19, 1982, Bédard explained to the House that his project would give priority to Quebec laws over the provisions of the Canadian charter. The systematic use of the derogation provision would ensure that “the National Assembly keeps its legislative powers intact in its limited areas without being subject to an external legal framework”. Bédard even argues that this usage will ensure that only the Quebec charter will apply to laws issued by the National Assembly.
Thus, Bédard and, by extension, Lévesque imagine that, by using the Canadian derogation provision, they will protect the Quebec charter from what they call an “external legal framework”. Some would think that this external framework is the Canadian charter — and, to a lesser extent, the federal courts, starting with the Supreme Court. Once sheltered, according to them, the Quebec charter would then live in an airtight legal space based solely on Quebec democracy.
Mirage
What happened next would prove them wrong all along. On the one hand, it was illusory to hope that the Canadian judicial system would develop distinct interpretations of the same rights provided for in the two charters, especially when the wording is similar. How could the same judges think differently on the same subjects?
On the other hand, and, above all, in the Ford v. Quebec (Attorney General) of 1988, the Supreme Court — despite very different wording of the interpretation clauses of the charters (article 1 for the Canadian and article 9.1 for the Quebec) — decided that the test resulting from the stop R. v. Oakes of 1986 used to judge whether the violation of a right is constitutional under article 1 of the Canadian charter would be the same for article 9.1 of the Quebec charter.
In this decision, the Supreme Court invalidated certain provisions of the Charter of the French language based on the Quebec charter – and not the Canadian one, which had been set aside by its override provision. Lévesque was consistent in his ideas: he had in fact not protected Bill 101 with the Quebec exemption provision, being content with its federal counterpart.
As candid as it was, Lévesque’s vision regarding the Quebec charter died at that moment: the democrat that he was paid little attention to the fact that the Canadian state, through its judicial institutions, would show no deference to Quebec democracy.
Fable
If, in 2024, we claim to want to be faithful to Lévesque’s vision – for whom the National Assembly is the only legitimate place to dispose of the rights contained in the Quebec charter, and that we must protect these from interventions external — it is obvious that he would agree with the use of the derogation provision of the Quebec charter each time the National Assembly deems it necessary to use the Canadian derogation provision, as is the case for the Law on State Secularism.
In fact, since the R. v. Oakes, we cannot afford not to use the Quebec exemption provision when using its Canadian counterpart.
Any claim to the contrary is at best fabrication, but probably more Machiavellian, in the sense that the elements raised by Lévesque in his opposition to the Canadian charter are found almost in every way in our contemporary situation in connection with the Quebec charter. By calling Lévesque to their defense, the jurists want to hide the fact that they know full well that not using the Quebec derogation provision would lead to exactly the same result as if the National Assembly had not used the Canadian provision.
What would Lévesque say about the evolution of Canadian law with regard to the Quebec charter? Probably, if we want a legal universe that is hermetic and distinct from our neighbor, only one path is available to us: that of creating a new State which, by nature, would have its equally new legal space.
To suggest a text or to make comments and suggestions, write to Dave Noël at [email protected].