[Opinion] Bill 96, an innovative law, according to Benoît Pelletier

The law no^oh 96, which was recently adopted by the National Assembly and sanctioned, has given rise to its share of controversies, essentially relating to the constitutionality of the provisions it contains. We will focus here on two types of measures of this law in particular, namely the constitutional amendments and the notwithstanding provisions.

On the chapter of the constitutional amendments, let us recall that the law n^oh 96 amends the Constitution Act, 1867 (1867 Act) to recognize and affirm that “ [l]e Quebecers form a nation” and that “ [l]French is the only official language of Quebec. It is also the common language of the Quebec nation”.

This amendment to the Constitution of Canada — which also concerns the Constitution of the province of Quebec — can only have a limited scope. Indeed, it cannot have an impact on the other provinces, nor on the federal order of government, nor on federal-provincial/territorial relations in general. However, make no mistake, this amendment is not purely symbolic, in the sense that it has the force of law, that it has official authority and that it may eventually be used to interpret Quebec laws, including the law^oh 96 precisely.

It could even be used to interpret the Canadian Constitution on matters of interest only to Quebec. All of this will be left to the judgment of the courts, which I encourage, moreover, not only to confirm the feasibility and legality of this modification, but also to implement it as widely as possible.

Some believe that the constitutional changes accomplished by Law No.^oh 96 have no legal value or authority since, according to them, they are only part of the French version of the 1867 law, which is official only in English. They are in the most total error. Indeed, this last law contains a few provisions that have official status in both French and English. This is the case for certain amendments made over the years by the Canadian Parliament to the 1867 Act, in particular amendments relating to the representation of the provinces and territories in the House of Commons.

This is also now the case for the modifications made by law no.^oh 96. If the Parliament of Canada was able in the past to unilaterally amend the 1867 Act and give official value to the French and English versions of these amendments, the provinces may also do so. In fact, the scope of the provincial power to amend the constitution is equivalent to that of the federal power, insofar as it falls within the framework of the respective constitutional jurisdictions of the two orders of government.

Turning now to the derogation provisions contained in Law no.^oh 96, they relate both to the exclusion of some of the provisions of the Canadian Charter of Rights and Freedoms and to the exclusion of most of the provisions of the Charter of Human Rights and Freedoms.

The powers and provisions of derogation are in line with respect for the principles of the separation of powers and parliamentary sovereignty. They make it possible to restore a healthy balance between the legislative power and the judicial power.

To fully understand what it is all about, it is important to know that the Canadian and Quebec political contexts are characterized by the following conditions or factors:

— Quebec has not adhered and still does not adhere to patriation, nor to the adoption of the Constitutional Act of 1982 which accompanied and formalized it;

— there is a strong legalization of social and political issues;

— the courts of justice show little sensitivity (except in words) with regard to the specificity of Quebec;

— the Canadian Charter of Rights and Freedoms is given an unnecessarily standardizing interpretation by the courts, which leaves little room for the expression of Québec’s originality;

— the principle of multiculturalism collides head-on with that of interculturalism, the latter being nevertheless favored by the Quebec authorities;

— the derogatory powers constitute one of the only means available to Québec — apart from a constitutional autonomy too often eroded by the centralizing tendencies of Canadian federalism — to assert its national identity characteristics within Canada.

Canadian federalism crushes, to a certain extent, its intrinsic diversity, including Quebec particularism. He does this in the name of a work of nation-building (nation-building) which leads many Canadians to see Canada as a unitary state rather than as a federal state as such. From this perspective, where Quebec feels increasingly suffocated within Canada, the use of the derogatory power seems both legitimate and welcome, as a constitutional source of expression and affirmation of unique identity of Quebec.

Contrary to what some claim, the current Quebec government does not abuse the derogatory power. It only uses it for laws with a strong identity flavor, which are judicially contestable because of the courts’ overly questionable interpretation of the constitutional framework. If it were not for this interpretation, the use of the derogatory power by Quebec would be less necessary.

All in all, the law n^oh 96 offers a bold and innovative vision of Canadian constitutional law on many issues. Let us now hope that the courts will be able to show understanding of such collective choices, choices that come under our very constitutional architecture, rather than opposing them. After all, judicial creativity should not be applied in a one-way fashion, that is, in a direction that strictly favors Ottawa. The same is true for judicial deference to the decisions of parliaments and governments.

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