The federal Minister of Justice, David Lametti, is determined to put an end to the preventive use of the notwithstanding clause of the Canadian Charter of Rights and Freedoms with which his Quebec counterpart — and author of Bills 21 and 96 —, Simon Jolin -Barrette, is now a regular. And he has more than one idea in mind to achieve this.
The Trudeau government could, by means of a reference, seek the opinion of the Supreme Court of Canada on the circumstances in which Parliament or a legislature can exempt a law from the application of provisions of the Charter. “It’s always possible,” says David Lametti in an interview with The duty.
The Quebec government has abused the notwithstanding provision by inserting it at the first opportunity in the bills on the secularism of the Quebec state (Bill 21) and on the official and common language of Quebec, French (Bill 96), cutting short both “political discussions” and “legal analyses”, insists Mr. Lametti. Which, “in a democracy, is not desirable,” he concludes at an intersection of hallways in the West Block of the Parliament of Canada. “It changes the structure of the Constitution, of the Charter, in a way that was not envisaged at the time. […] We empty, we avoid political discussions and legal analyzes and that is not the goal [de la disposition de dérogation. Le but,] it was to give the last word to the legislature, ”adds the Attorney General of Canada (AGC).
However, the government of René Lévesque had used the notwithstanding clause systematically during the three years following the patriation of the Constitution of Canada to the country and the entrenchment of the Charter of Rights and Freedoms without its agreement. ” At first ! says Mr. Lametti, a few steps from the House of Commons room. “It was seen as a political reaction,” he continues, recalling that the PQ government had shielded “many bills that were not controversial” from legal challenges.
According to the former professor at McGill University’s Faculty of Law, Robert Bourassa’s government had “well used” the derogation provision to maintain the rule of French unilingualism in commercial signage “after a court decision” emasculating the Charter of the French language in 1988.
A fight ahead
Mr. Lametti will not sound the legal charge against the precautionary recourse to the derogation provision before the Court of Appeal of Quebec has ruled on the legality of the law on secularism – which is not for tomorrow. Indeed, the highest court in Quebec has postponed the hearing of the parties until after the next general election in Quebec, scheduled for October 3.
One thing is certain, the PGC will come out of the shadows when the law prohibiting the wearing of religious symbols by certain state employees ends up before the Supreme Court of Canada since “it becomes[dra] by definition a national issue”. According to this “important principle”, it would do the same when the law reinforcing the Charter of the French language (96) will be before the highest court.
The Quebec Minister of Justice, Simon Jolin-Barrette, who is convinced that “it is up to the Parliament of Quebec and not to the courts to decide [de l’]organization of society” in Quebec, promises to be on its way.
“For the time being, we must give Quebecers the space to be heard before the courts because they have been largely excluded from the political process by the current government,” argues Mr. Lametti, while pointing the finger at the team of François Legault. “There are many Quebecers who, like me, are against Bill 96, who are against Bill 21.”
Two parallel universes?
The Canadian ministers, David Lametti, and the Quebec ministers, Simon Jolin-Barrette, seem at times to evolve in parallel political and legal universes.
For example, Mr. Jolin-Barrette repeats in all tones that private companies under federal jurisdiction present in Quebec are now subject to the obligations of the Charter of the French language. It is not so, retorts Mr. Lametti on his Parliament Hill. “No,” he said, promising in the same breath to “defend [ses] jurisdiction before the courts”.
Mr. Lametti and Mr. Jolin-Barrette do not agree either on the place of the Canadian Charter of Rights and Freedoms, starting in the hearts of Quebeckers. The Quebec minister argues that Quebec “should govern itself according to the Quebec Charter” and not the Canadian Charter, which suffers from “a deficit of legitimacy”. The Canadian minister cannot imagine anything other than the application of the Canadian Charter “everywhere in Canada”, including in Quebec, where it “is still very popular”. If the Legault government launches a “collective conversation” on individual and collective rights, “Quebecers will be heard to maintain the Charter,” predicts the Montrealer.
Constitutional changes
That said, the two Ministers of Justice agree on the possibility for a province to modify its own Constitution and, by extension, the Constitution of Canada. That’s not all, Mr. Lametti is ready to say that the articles inserted into the Constitution by means of Law 96 have a supra-legislative character. “Yes, but it will only apply to Quebec and it cannot affect the other parts of the Canadian Constitution that apply to Quebec as well,” he explains to the To have to. In no way “the rights protected in the Constitution, including section 133 which gives language rights in the courts and in the National Assembly for the use of English”, can bear the brunt of the constitutional amendments made unilaterally by Quebec, he illustrates.
For his part, Mr. Jolin-Barrette repeats to anyone who will listen that the inclusion of the “fundamental characteristics of Quebec” in the Constitution Act of 1867 constitutes an “important gesture, in particular to ensure the survival of French”. “The Quebec nation holds collective rights. It gives constitutional status to the fact that Quebeckers form a nation, but also that French is the official and common language of the Quebec state,” he argued on June 8, 2019. pledging to send a copy of his “Administrative Consolidation of the Constitution Act, 1867 and the Canada Act, 1982” to Ottawa.
At the time these lines were written, the blue book printed at the Government of Quebec press had not yet made its way to Mr. Lametti’s office. The “additions” to the Constitution Act, 1867 made by the Quebec legislature will one way or another be “reproduced in the codification of the Constitutional Laws” of the Department of Justice of Canada “in the next update” , promises a federal official.