To those who suggest going to the Supreme Court to limit recourse to the notwithstanding clause in the Canadian Charter of Human Rights and Freedoms, it should be remembered that by doing so, they would place this Court in a situation where it would be both judge and party, since it would be asked to rule on the application of a clause intended to limit its own powers.
For supporters of a self-regulating Supreme Court in this way, I suggest reading what none other than Thomas Jefferson wrote about the dangers of despotism inherent in government by judges. And to capture the essence of his thought, I reproduce here a few paragraphs taken from the book The Living Thoughts of Thomas Jefferson compiled by John Dewey. I translated them for the purposes of this article.
To his friend Javis, Jefferson writes the following.
“You seem to attribute to judges the role of ultimate arbiters in any debate of a constitutional nature: a doctrine which I consider dangerous and which exposes us to the despotism of an oligarchy. Our judges are as honest as ordinary mortals, but nothing more. They share the same passions as us, the same tendency towards parochialism, the same quest for power and privileges attached to their position. Their maximboni judicis est ampliare jurisdictionem” proclaims that the role of a good judge is to extend his jurisdiction, and the power of our magistrates is all the more dangerous as they are appointed for life and are accountable to no one. […]
“The seeds of the dissolution of our federal country were sown when its judicial system was created. An irresponsible system (because the threat of dismissal of judges is only a simple scarecrow) which has given itself the task of invading, silently, day and night, like the force of gravity, all fields of jurisdiction for withdraw the powers of the member states of the federation and entrust them to one and the same government for all. I oppose this consolidation of powers, because when all forms of government of domestic as well as foreign affairs, in small as well as big things, have been transferred to Washington, which has become the center of all powers, There will be an end to the mutual limitation of powers between governments, and our country will become as vile and oppressive as the British government from which we have separated. […]
“In truth, no human being can enjoy lifelong trust if he escapes all accountability. […]. And no human group is more accountable than the judges attached to our general government, which I call our Ministry of External Affairs. Because these magistrates interpret the fundamental law of the country by resorting to inference, analogy, even sophism as if it were an ordinary law. And they don’t even seem aware that this constitution is not the property of a single government that oversees and controls it, but that it was born of a pact between several centers of independent power that all demand a equal right to understand its content and to demand compliance with the obligations it imposes. »
A fair balance
Let us recall here that a way of limiting the power of judges in accordance with Jefferson’s wishes is already provided for in the Canadian Charter of Human Rights and Freedoms.
Article 25 indeed reads as follows.
“The fact that this Charter guarantees certain rights and freedoms does not derogate from the rights or freedoms — aboriginal, treaty or otherwise — of the aboriginal peoples of Canada, including: (a) the rights or freedoms recognized by the Royal Proclamation of 7 October 1763; and (b) existing rights or freedoms resulting from land claims agreements or those which may be so acquired. »
Similarly, Articles 27 and 29 specify that:
“Any interpretation of this charter must be consistent with the objective of promoting the maintenance and enhancement of the multicultural heritage of Canadians. »
And that “the provisions of the charter do not derogate from the rights or privileges guaranteed under the Constitution of Canada with respect to separate schools and other denominational schools”.
To ensure a fair balance between the rights and freedoms of individuals and the collective rights recognized for the founding peoples and the provinces, the Meech Lake Accord proposed in the same vein the addition of the following clauses to our Constitution:
“(1) Any interpretation of the Constitution of Canada must be consistent with:
a) recognition that the existence of French-speaking Canadians, concentrated in Quebec, but also present in the rest of the country, and of English-speaking Canadians, concentrated in the rest of the country, but also present in Quebec , is a fundamental characteristic of Canada;
b) recognition that Quebec forms a distinct society within Canada.
(2) The Parliament of Canada and the legislatures of the provinces have the role of protecting the fundamental characteristic of Canada referred to in paragraph (1) (a).
(3) The legislature and government of Quebec have the role of protecting and promoting the distinct character of Quebec referred to in clause (1) (b).
(4) Nothing in this section derogates from the powers, rights or privileges of the Parliament or Government of Canada, or of the provincial legislatures or governments, including their powers, rights or privileges in relation to language. . »
Necessary notwithstanding provision
Clearly, the right Canadian way to counter the government by judges denounced by Jefferson consists in enshrining in the Constitution of the country the obligation imposed on judges to take into account the collective rights of the founding peoples and the provinces in the interpretation of rights and freedoms of individuals guaranteed by our charters. It also consists in providing for the use of the derogation provision, if in the eyes of the people’s elected representatives, the judges do not take or insufficiently take into account these collective rights in the interpretation of the individual rights protected by our charters.
Unfortunately, without the constitutional recognition of its collective rights offered by the Meech Lake Accord, Quebec is left with no recourse to the notwithstanding clause to protect its collective rights against a court required to interpret the Canadian Charter from a multicultural allergic to the rights of the founding peoples of the country.
One day it will be necessary to reconnect with the spirit, if not the letter, of Meech to break this impasse, and ensure that Canada becomes something other than a pale copy of the melting pot American.