The Ontario legislature’s use of an override provision in its Bill 28, relating to the return to forced labor of more than 55,000 education workers, has brought overriding powers and provisions back to the fore (” clauses notwithstanding”). Once again, Prime Minister Trudeau has announced his intention to do battle, judicially speaking, with these measures, the source of which is nevertheless constitutional or quasi-constitutional.
Here and there, we hear citizens criticizing the use of derogatory powers. There are even those who fear that this use will be more and more frequent in the future, in light of the right-wing movement which seems to be developing in Canada at the moment. In short, many are wondering these days about the relevance and legitimacy, even the constitutionality to a certain extent, of the use of derogatory powers. The Quebec Court of Appeal is also seized of this question, in the context of the debate on Bill 21, the object of which is the secularism of the State.
Saskatchewan, Ontario and Quebec are the three provinces that have used overriding powers to date. Quebec did it a few times, and even systematically at the time of René Lévesque. For example, in addition to Law 21, which we have just discussed, let us note Law 96 – relating to the modernization of Law 101 –, in which there are also derogatory provisions. In reality, we can say that Quebec uses the powers of derogation to ensure its social progress and to promote certain identity issues.
Overall, the derogatory measures aim to establish a better balance between the legislative and executive powers on the one hand, and the judicial power on the other. They are not only respectful of the democratic principle – since the final word then belongs to the people’s elected representatives rather than to unelected judges – but they are also a manifestation of another fundamental constitutional principle: parliamentary sovereignty.
In 1988, the Supreme Court of Canada recognized not only the constitutionality of overriding powers, but also their legitimacy. The Court rightly said that recourse to the derogating provisions had to comply with simple conditions of form and not of substance.
The existence and use of derogatory powers is perfectly compatible with federalism as well as with constitutionalism. Moreover, in the specific case of Quebec, these powers allow the National Assembly to make collective choices different from those of the other federative partners (federal order of government, other provinces, etc.).
Moreover, the use of derogatory powers is part of a context marked by a very strong judicialization of our political system. In fact, the courts are doing very broadly these days. They speak out extensively on moral issues – at the invitation of the Charter of Human Rights and Freedoms – and occasionally take up files with a strong political content. In such a situation, it is good that the legislative assemblies sometimes have the last word, which the derogatory powers allow.
Above all, let’s not forget that Quebec has never officially endorsed the patriation of the Canadian Constitution and the political compromise that gave birth to it. The overriding power then allows Quebec to withdraw somewhat from the application of the rights and freedoms contained in the Canadian Charter of Rights and Freedoms, for a period of five years (renewable).
Some wonder whether overriding powers should not be used only in a “curative” way, that is, after a decision has been rendered by a court of law on the invalidity of any legislative measure. . For our part, we answer this question in the negative, given that the derogatory powers do not already prevent the courts from ruling on the validity of laws or of certain provisions of a law, as evidenced by the judgment of 240 pages rendered in April 2021 by the Superior Court of Quebec in the file hakdealing with Bill 21. All that the overriding powers prevent the courts from doing is to declare the invalidity or unconstitutionality of the impugned legislative measures.
There is also the question of the political price to pay for the use of derogatory provisions. In Ontario, for example, this price is much higher than in Quebec, Bill 28 having had to be repealed. This is proof that the use of overriding provisions in the case of Quebec responds more to serious social or collective concerns, and is relatively consensual. Moreover, this should reassure the courts rather than worry them.
In short, the overriding powers ensure the overall balance of the Canadian Charter of Rights and Freedoms and other legislative documents that contain them. Moreover, they constitute one of the only means available to Quebec to assert its specificity and its national character within the Canadian whole. Faced with a charter – the Canadian Charter of Rights and Freedoms – which has been interpreted and applied in a uniform manner by the courts of justice, the derogatory powers are erected in the Canadian political environment as an essential condition for maintaining the inherent diversity in Canada and as a valuable tool allowing Quebec to claim the right to be different. In this sense, the derogatory powers must be seen as part of our main constitutional principles. They are bulwarks against standardization, the uniformization of the Canadian constitutional framework itself.