The day after “Vive le Québec libre!” “, the Washington Evening Star had this comment: “With the infallible precision of a sadistic dentist, Charles de Gaulle twisted directly the most sensitive nerve of the Canadian anatomy. By claiming that a Quebec law of a few lines is enough to modify an article of the Constitution, is the CAQ government deliberately plunging its sharpest tools into the Canadian channel?
Minister Jean-François Roberge assured us that he had “solid” opinions attesting to the invincibility of his short text in the face of future challenges. I am suspicious of this kind of assurance since Bernard Drainville claimed to have opinions assuring him that the Charter of Values, not protected by a derogation clause, would not be butchered by the courts. A claim destroyed when the Superior Court of Quebec indicated that it would have invalidated the current Act respecting the secularism of the State, less ambitious, had it not been for the derogatory shield. Mr. Drainville admitted in the meantime that his opinions were limited to comments made by former Supreme Court justice Claire L’Heureux-Dubé, who clearly represented a minority current in the judiciary.
What precedent is the CAQ based on? Certainly not on his previous attempt to introduce into the Constitution the existence in Quebec of a nation and an official language, because these provisions are, at the moment, contested and could sink — in whole or in part — once rendered to the Supreme Court.
On what else? On the mess that constitutes the text of 1867, explains the constitutionalist Patrick Taillon, supporter of this thesis. “In a normal country, all this would be impossible, a constitution is not modified by an ordinary law. But, he argues, the Canadian Constitution is so badly made, with four distinct amendment procedures, that its shortcomings can be exploited. Quebec had thus abolished its upper house without permission in 1967.
Article 45 of the Constitution clearly provides that a “legislature has exclusive jurisdiction to modify the constitution of its province”, that is to say the aspects of the text which concern it alone. But the decision to have a king as head of state is explicitly excluded from this provincial power. It will be easy for judges to indicate that the obligation of the oath stems from this non-provincial decision and that one cannot split the chief and the allegiance to the chief.
To agree to bless the Quebec insurgents with the oath, on the contrary, our nine final decision makers would have to be in a remarkably permissive state of mind. However, we are, on the contrary, in a climate of tightening of the constitutional bolts.
In addition to Quebec’s attempt — still pending — to inscribe nation and language in the sacred text, now the provinces of Alberta and Saskatchewan are passing laws that claim to declare null and void federal laws that are constitutionally valid. , but which have the fault of antagonizing some of the favorite pastimes of the Prairies, among which we count an insane contribution to the stock of CO2 in the air.
This fall, when in Ontario, Doug Ford pretended to draw his notwithstanding clause to suspend the right to strike, it took little for Ottawa to proceed to an immediate reference to the Supreme Court to withdraw the trigger finger.
On the central question of the right of Quebec and the provinces to push back the limits of their powers, we are witnessing a reaction in the opposite direction of reinforcement of constitutional inflexibility. Our Law on the secularism of the State, as we have seen, used the notwithstanding clause in a preventive manner, as allowed by the — clear — text of the Constitution and a judgment — just as clear — of the highest court handed down 34 years ago (the Ford judgment).
But the consensus of English-Canadian jurists is that this provincial loophole must be sealed. The Federal Minister of Justice, David Lametti, pretends to be convinced that this was the wish of the drafters of the text (it is false) and intends to convince the judges of it as soon as Bill 21 is submitted to their implacable examination. .
They are preparing for it. In their judgment “Queen v. Kirkpatrick”, delivered while you were on vacation at the end of July, they go on a long digression to establish the rules allowing them to change their minds on an important point of law. The Court, they write, “also departs from precedents when fundamental changes undermine their logic”. “This can happen in two ways, either through: (1) societal change (e.g. social, economic, or technological change in Canadian society), or (2) legal change, such as constitutional amendments ( eg, adoption of the Charter), or incremental legal change, where subsequent case law “waters down” a precedent. »
Anti-derogation jurists specifically plead the societal change represented by the sanctification of the Charter of Rights since its adoption and the growing revulsion to derogate from it in any way. Obviously, it is about the society in which they evolve, them, in the Anglo-Canadian faculties of law, not Quebec society, without interest. Then, they plead that, for 40 years, the Court has been more and more enthusiastic in the interpretation of rights, which considerably attenuates the merits of its blunder committed 40 years ago, allowing the use of the derogation anything goes.
Time is spoiling for the expected success of the CAQ constitutional boldness. The Supreme Court, however, showed respect for the sovereignty exercised by the National Assembly over its internal affairs. If the objective of the CAQ is really to make the oath optional, it would be well advised to add to its own law the motion and the law of internal management proposed by the PQ and QS. By having a belt and two suspenders in this way, our collective wish to put the oath into oblivion would have a better chance of not being stripped.
[email protected]; blog: jflisee.org