There is nothing surprising in Justin Trudeau’s idea of better regulating the derogation provision, an idea that François Legault described at the end of the week as a “frontal attack” against the Quebec nation, nothing less.
After all, Ottawa has already announced that it will participate in the challenge to Bill 21 on secularism when it ends up in the Supreme Court, probably next fall. It is therefore not new that the federal government twitches on the increasingly wide use of the derogation provision, also called the “notwithstanding clause”.
And he’s right.
The notwithstanding clause is the compromise that convinced the provinces to accept the Constitution in 1982, knowing that they could have the last word. In the name of the collective good, the provision allows elected officials to pass laws even if they run counter to minority rights under the Charter of Rights and Freedoms.
The notwithstanding clause is a valve of last resort. Not a mechanism that is used in all sauces.
However, the Coalition avenir Québec (CAQ) has used it twice and in a “preventive” manner on top of the bargain, that is to say by inserting it from the start in its bills instead of wait for the court to declare them invalid. An unhealthy attempt to short-circuit the debate, however essential.
This made it possible to pass Law 96 on the French language and Law 21 on secularism… a law adopted under the gag order, it should be remembered, by a government which had been elected with only 37% of the votes.
For democracy, it will be necessary to iron. And François Legault should therefore keep a little embarrassment before accusing Justin Trudeau of “attacking democracy and the entire people of Quebec”.
To hear François Legault, the notwithstanding provision has become the symbol of the salvation of the nation. But be careful: we must not confuse the collective right of an entire people with the ability of the group that weighs the heaviest to exercise power without constraints. Otherwise, the notwithstanding clause amounts to applying the law of the strongest, precisely what our charters want to avoid.
Because it is important to remember: when we use the notwithstanding clause, we not only undermine the Canadian Charter, but also the Quebec Charter, which essentially protects the same rights.
But back to Ottawa. Even if the Trudeau government asks the Supreme Court to better regulate the use of the notwithstanding clause, in the context of a reference, it is far from clear that the highest court in the country will go in this direction.
After all, the notwithstanding clause contains no conditions and is part of the 1982 “contract”. And if the Court imposed new guidelines, who would enforce them? The courtyard ! By the same token, the court would find itself having the last word, which would run counter to the initial objective of the Constitution.
Even if we would like more restraint in the use of the notwithstanding provision, particularly with regard to its “preventive” use, it is not up to the Supreme Court to impose new parameters.
It is up to elected officials to bear the brunt of the use of the notwithstanding clause. The Ford government learned this the hard way when it pulled the provision out of its sleeve to prevent teachers from striking in November. He quickly backed down in the face of pressure from the unions.
But when faced with other minority groups that are less organized or have less political clout, such as Muslims, governments don’t always pay the price when using the notwithstanding clause.
What’s the point of having a charter of rights and freedoms if elected officials can circumvent it by shouting scissors… or “notwithstanding”?
If the provinces wanted to make more dignified use of the notwithstanding clause, they could adopt guidelines themselves, such as the obligation to obtain two-thirds of the votes before applying it. This would lend greater legitimacy to the process and allow for a more inclusive debate.
You can very well be Quebecers, proud of your culture and your language, without crushing the rights of minorities.