In the wake of the adoption of provisions derogating from the Canadian Charter of Rights and Freedoms by the Quebec legislator in order to protect its law on secularism from certain legal challenges, a jurisprudential and doctrinal consensus that had long prevailed been questioned. It is now argued that, in view of the terms used therein, recourse to section 33 of the Charter does not completely prevent the courts from ruling on the relationship between, on the one hand, legislative provisions and, on the other hand, the other, constitutional provisions — in this case provisions of the Charter — from which they nevertheless validly derogate.
The paving stone in the pond was, in 2019, the work of professors Grégoire Webber and Robert Leckey and practitioner Eric Mendelsohn, who have since then produced on both sides more substantial but partly divergent arguments, and to which other authors have followed suit. In his disposition — now pending before the Court of Appeal — of a challenge to the constitutionality of the Quebec law on secularism, the judge of the Superior Court of Quebec Marc-André Blanchard had almost allowed himself to be convinced, before reconsider on the grounds that “the fact remains that having such a debate constitutes an indirect way of doing something that cannot be done directly”.
The recent popularization (in The Press of June 2), by Professor Jean Leclair, of this thesis that we believed to have refuted in an article that we had published in 2020, goes as follows: “The derogatory clause [sic] of the Canadian Charter provides that a legislature [ou le Parlement] may pass a law expressly stating that it [ou une de ses dispositions] has effect regardless of any particular provision of section 2 or sections 7 to 15 […] of this charter and that the law which is the subject of a declaration […] to the effect it would have except for the relevant provision of the charter. […] nothing in this article precludes a court from considering whether or not the enacted law infringes a right [tant que ce tribunal se garde bien d’invalider la loi ou d’autrement la priver d’effets]. »
However, as Professor Dwight Newman teaches, the “extrinsic evidence” (that of the works that presided over its adoption) of the purpose of section 33 establishes that it has always had the function of authorizing the legislator to temporarily exempt — for a period of no more than five years, but which can be renewed — from any legal debate a specific question: the relationship between legislative provisions declared (and therefore identified) with certain provisions, declared (and therefore identified) also of the Canadian Charter.
In order to make it fulfill this function, the constituent of 1982 placed article 33 in a part of the Charter which he entitled “Application of the Charter”. The reader will have understood: it was thus a question of providing for the possibility of the legislative choice of an exception, temporary and accompanied by conditions of form only, to the application of certain provisions of the Charter to identified legislative provisions. Section 33 therefore does not provide, as does section 24 which has been placed in a part entitled “Remedies”, what the courts may or may not do to implement the Charter. In our legal system, the courts have no jurisdiction either to enforce unenforceable provisions or to grant a remedy in the absence of a right.
Added to this balance between “extrinsic evidence” and the meaning that easily emerges from the structure of the provisions of the Charter is the only judgment of principle rendered by the Supreme Court of Canada on the subject of the constitutional provisions that concern us : the Ford case of 1988. Narrow and eminently selective re-readings of it have recently been proposed by our interlocutors, interpretations which consist, in a rather anachronistic and fabricated way, in emphasizing that, on the occasion of this case, the Supreme Court did not has not explicitly pronounced on the question as they formulate it today. In our view, the court did not have to answer a question that an honest reading of its leading judgment reveals that it could not admit.
It would be a false belief that any modern liberal and democratic state of law must know the judicial control, even simply advisory, of the laws by virtue of a formally supra-legislative catalog of fundamental rights and freedoms — which, to take only this example, the UK ignores. It is therefore a choice of the legal settlor. In 1982, ours made this choice.
However, it accompanied it with the authorization of the legislator to provide otherwise, but for certain rights or freedoms only, temporarily and under certain formal conditions. From this accompaniment, he was all the more free. There are constitutional scholars who are unable to accept that, in a modern liberal and democratic state of law, certain questions relating to constitutional rights and freedoms, if any, can be exceptionally diverted.
According to them, the opinion of the courts, on such questions, is always welcome. Such excesses fuel the new favor, doctrinal and profane, that has been enjoying in recent years the criticism of judicial review of the constitutionality of laws under fundamental rights as a form of “government by judges”. This is why we responded to Dean Leckey’s appeal for the “responsibility of jurists” by arguing that, on the contrary, the responsibility would rather lie with those who, starting with the judges, would attach themselves to the mast.