The question, says Alice, is whether you have the power to make words mean anything other than what they mean. ‘The question,’ Humpty Dumpty retorted, ‘is who will be master… period. Lewis Carroll was a master of words. He also had a keen understanding of power relations. ” When, me, I use a word, he makes Humpty Dumpty say again, it means exactly what I like it to mean…no more, no less. »
David Lametti, Attorney General of Canada, slipped into the Humpty-Dumpty suit this week to change the meaning of words that have been inscribed in the Canadian Constitution for 40 years. It reads in its article 33 that “Parliament or the legislature of a province may pass an Act in which it is expressly declared that it or any of its provisions has effect independently of any provision” of articles of the Charter Canadian rights.
The article had been introduced, at the request of the English-speaking provinces, especially to allow elected officials to declare, from time to time, that they were going to decide themselves on questions of law and the balance between individual and collective rights. I’m old enough to have seen Saskatchewan Premier Allan Blakeney of the New Democratic Party advocating this on TV. He was very concerned that, without this clause, all decisions on major files are taken by, he said, a “government of judges” rather than by representatives of the people.
Jean Chrétien himself, Minister of Justice at the time the article was written and adopted, became a supporter. He defended it thus in 1992 in front of liberal militants who wanted to get rid of it: [La dérogation] is not as bad as you think… Without it, you leave all decisions in the hands of the court. If you have a good yard, no problem. But the Supreme Court can make mistakes. They are judges. They are named. It’s not a perfect system. »
From the adoption of the Constitution, everyone understood that elected officials could assert their parliamentary sovereignty by invoking the famous clause, at the time of their choice, including preventively. This is what René Lévesque’s government did by applying it to all laws. Did the Quebec legislators read the words correctly? The question was posed to the august justices of the Supreme Court, who answered quite clearly in 1988 that what the evil Quebec separatists had done with the provision “is a valid and effective exercise of the power of derogation” (Ford case, para. 34).
On the strength of this interpretation of a clause which, on its face, does not require any, successive Quebec governments, including Liberals, have thus used the provision, preventively, 19 times, to exercise their parliamentary sovereignty.
But now, it should not be used beyond what the master wanted. François Legault and his acolytes, promising to carry out their nationalist project “within Canada”, have forgotten that the master can be capricious. They are perhaps even naive enough to think that, since federal MPs recognize that Quebec forms a nation, they would let it behave as such on angry subjects.
Humpty Lametti came to disabuse them on Wednesday. The clause is meant to be “the last word”, it was not meant to be “the first word”. Reinventing history, he twists the past to fit his favorite version of the present. And he announces that his government will ask the judges to back down and go against their previous case law. Better: to pretend that’s what they’ve been meaning to say all along. That it was, therefore, a great misunderstanding. Or that Quebec legislators have been very hard of hearing.
Minister Lametti did not invent his twisted argument. Since the adoption of the law on secularism, English-Canadian lawyers have been spinning their brains in turbo mode to find a way to prohibit Quebecers from implementing, here, formulas of secularism considered perfectly acceptable in European law. . How to plug this intolerable breach? Redefining when the use of the notwithstanding provision is permitted is one. Lametti did not tell us, however, that this would be his only argument. Other strong-headed multiculturalists want it to be discovered immediately that the clause cannot in any case be applied to religious rights. Neither a priori nor a posteriori.
The average Quebecer knows little about constitutional quibbles. But he follows hockey closely. He is quick to leap from his seat when, he shouts, “the referee is rotten!” “. He still passionately debates the validity or not of the goal scored by the Nordic Alain Côté in the fifth game of the playoffs against the Canadiens, at the Forum, in April 1987. He flies into a rage if someone ventures to change the rules of the game in progress.
But that is exactly what it is about. Within the Canadian framework, using the rules that were imposed against the wishes of their predecessors in 1982, the Quebec of the Legault team recently managed to score a goal in the first period – the law on secularism – then a second goal — language law. Disaster, the Canadian team does not intend to wait for the end of the match. During the break, she asks the governors of the league (which she herself appointed) to reinterpret the rules (which she herself enacted) to declare invalid, retroactively, the two goals scored.
And to make it clear to those supporters of the Quebec team who have forgotten, who is the master.
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