The term “tyranny of the majority”, used by the League of Rights and Freedoms (LDL) in the text “What collective conversation on the Charters?” ” in The duty, is very special! As Professor Guillaume Rousseau wrote recently in The Journal of Quebec by responding to an article by André Pratte in The Press,the courts also decide by majority, when five out of nine justices of the Supreme Court “decide one way while the other four decide the opposite way, only the opinion of the five majority judges is binding and binding on the others courts “.
Professor Rousseau further argues that the composition of the highest court is “so that the common lawyers from the other provinces, generally Anglophone or Anglophile, are in the majority there and that Quebec jurists, trained in the tradition of civil law and generally more Francophone or Francophile, are in a strong minority there”. Not to mention that these appointments are all decided by the federal government.
Does the LDL see it as a tyranny of the majority?
This way of looking at the question of the majority would therefore in no way resolve the question, since has there not always been, in our democratic system up to the Supreme Court, this tyranny of the majority so dear to the LDL?
Suffice it to cite the example of the recent judgment of the Supreme Court of the United States concerning abortion which was adopted by a majority. With us, in business Ward v. Quebec (Commission des droits de la personne et des droits de la jeunesse), could Jérémy Gabriel not be considered as a person from a minority (disability), victim of the tyranny of the majority of judges, if we take this Manichaean view of LDL?
Would the majority judges be wiser, or even less creative than the minority judges? Is this model where the majority of judges have the last word enough for the LDL “to make a democracy”? Why should five out of nine people be given the right to “trample on the rights of minority groups”?
Moreover, concerning this assertion that the charters aim to protect the rights of minorities, it is inaccurate since they aim rather to protect the rights of all citizens. Even if they can pay particular attention to minorities, they must do so with regard to all minorities, including the French-speaking people of Quebec. This seems to us all the more appropriate since this French-speaking majority in Quebec still constitutes, in fact, a minority in the whole of which it is a part.
Concerning the abuse of the parliamentary sovereignty clause, Professor Benoit Pelletier in a text also published in The duty, is of the opinion that this is not the case since Quebec only uses it for laws with a strong identity flavor, which are judicially contestable because of the very questionable interpretation that the courts make of the constitutional framework. According to him, “if it were not for this interpretation, the use of the derogatory power by Quebec would be less necessary”, since the courts of justice show little sensitivity, except in words, with regard to the specificity of Quebec.
Indeed, the Constitution, repatriated following a majority decision of the Supreme Court justices authorizing it, is considered by many to be a federal constitutional coup d’etat and has since received a very uniform interpretation by the courts, which leaves little or no room for the expression of Quebec’s originality.
This Constitution is, in fact, not modifiable since it is padlocked twice, which made Trudeau say that the 1982 Constitution was so perfect that it should last 1000 years.
Does the LDL “deplore” this self-proclaimed perfection?
This is how, to counter this perfection, which looks more like a political blockage, created by Trudeau senior, an enlightened Machiavelli of modern times, the Supreme Court invented this metaphor of the “living tree” to adapt the constitutional texts , politically immutable, to the evolution of society. Thus, by extraordinary gymnastics, we should not take into account, for example, the preamble of the Charter where it is written in full that “Canada is founded on principles which recognize the supremacy of God”!
Given the one-way application of the law, which always favors the federal government and thus the absence of judicial deference with respect to the decisions of the National Assembly of Quebec, it seems important and legitimate to us to make unilateral gestures to force the necessary, but unlikely, evolution of Canadian law in the direction of greater autonomy for Quebec.
Until the Supreme Court changes its unanimous conclusions of 1988, in the Ford decision, which the LDL could certainly have qualified as the judicial absolutism of unanimity, can we bet that the announced revisit of the parliamentary sovereignty will turn into tyranny of the majority against the interests of Quebec?
In the meantime, it is imperative that Quebec be able to promote its language and its culture by amending the Constitution itself or by invoking the provisions of parliamentary sovereignty.
And this, until Quebec decides to choose another political framework.