In a recent article published by The PressJoël-Denis Bellavance reveals the concern of the federal authorities with regard to the recent moves toward autonomy in Quebec, Alberta and Saskatchewan1. These initiatives are essentially aimed at making changes to the Canadian Constitution, initiating a legal battle to challenge federal policies that run counter to provincial autonomy, at limiting the unifying and centralizing effect of the Canadian Charter of Rights and freedoms and, finally, to limit the exercise of the federal spending power in areas of provincial jurisdiction.
What annoys Ottawa the most, it seems, is the audacity, originality and creativity of these initiatives. In reality, these show that a growing number of provinces are fed up with the increasingly frequent interventions of the federal government in provincial jurisdictions.
Although many of the measures proposed by Alberta or Saskatchewan are of more than questionable constitutional validity, the same can hardly be said for Quebec’s use of constitutional amendments in Bill 96, as well as for the exercise of the derogatory power in laws 21 and 96.
Indeed, the constitutional amendments provided for in Bill 96, aimed at confirming that French is the only official language of Quebec as well as the common language of the Quebec nation, can only have a secondary, limited scope.
In fact, they can only relate to the Constitution of the province. They include a series of tacit exceptions, among which is the prohibition to affect the interplay of federal-provincial relations or the federal compromise of 1867, or to compromise or jeopardize the fundamental structure of the Canadian state.
As for Quebec’s recourse to the notwithstanding provision, it does not give cause to cry wolf. Certainly, in this era where rights and freedoms are extolled, the presence in the Canadian Charter of a derogatory power is surprising, even worrying, to some. However, to better understand what it is all about, it is worth recalling a certain number of principles or facts that have shaped the face of Canada:
1) Parliamentary sovereignty
British influence is evident in Canada, if only through the application of parliamentary sovereignty. Of course, this principle is adapted to the federal nature of the Canadian state. The fact remains, however, that when the Constitution was repatriated, the western provinces insisted that the constitutionalization of the Canadian Charter be accompanied by the inclusion in the latter of a power allowing the legislator to avoid, in certain respects, the application of the Charter. This is the derogatory power. In a political system as marked by the separation of powers as the Canadian system, the derogatory power presents an interesting compromise between the legislative and executive powers on the one hand, and the judicial power on the other. It also offers a compromise between collective interests and individual rights as well as between federal concerns and provincial autonomy.
2) Canadian diversity
In 1867, the conscious choice of federalism by the founding fathers of Canada was due in particular to their desire to preserve and promote Canadian diversity, among which was the specificity of Quebec. Nevertheless, the addition in 1982 of the Canadian Charter to the Constitution of Canada had a certain standardizing effect, especially as this charter is interpreted by the courts and, first and foremost, by the Supreme Court of Canada.
Faced with this leveling side of the said charter, there is an “instrument” likely to bring Canadian diversity to the fore: the derogatory power. This benefits Quebec in particular, since this power is nowadays one of the only constitutional measures available to it to assert its uniqueness and its particularity in Canada.
3) Judicialization
As in many liberal democracies, the judiciary leads the way in Canada. The courts are agents of change. They are even, through their judgments, levers of the evolution of the Canadian Constitution, even engines of the indirect modification of the constitutional corpus. If they do not have the constituent power strictly speaking, the courts nevertheless contribute to the adaptation of the Constitution according to the changing realities and needs of society. In this sense, they form part, to a certain extent, of the ways of circumventing the constitutional framework itself, that is to say, they offer an alternative solution to the application of the formal procedure of constitutional amendment. .
However, the derogatory power leaves the last word on certain sensitive issues to the legislator rather than to the judiciary. This allows Quebec to make collective choices different from those of its federative partners and to express its specificity within Canada as a whole.