I read the article by Joël-Denis Bellavance with the interview of our Prime Minister Justin Trudeau, and the comments made by my friend, the professor and former Minister of Justice of Quebec Benoit Pelletier.
Allow me to emphasize my disagreement with Mr. Pelletier on one particular point: I do not believe that the reference to the Supreme Court of a question aimed at framing the well-established power to use the notwithstanding clause is appropriate.
The Court, as you mentioned elsewhere in your article, has already stated that it is not necessary to justify the use of the clause; it is, in my humble opinion, very clear.
This clause was obtained after a hard fight by the provinces to finally accept the patriation of the Constitution.
Prime Minister Trudeau may be annoyed by the successive appeals to the clause by the provinces, but we are a long way from Afghanistan…the rights and freedoms of Canadian citizens are protected like nowhere else on the planet. He cannot use the Supreme Court reference as a means of circumventing the legal fact.
Asking the Supreme Court to decide how the notwithstanding clause should be framed is like asking it to legislate in its place…
of tyranny
Furthermore, the Prime Minister declares that the Charter of Rights protects minorities against the “tyranny” of the majority. The Prime Minister should remember that the Charter protects all Canadians, people who are part of the “majority”, that’s a lot of people, and sometimes they also need to be protected against the “tyranny” of certain minorities …it’s a question of balance.
However, it could broaden the debate. Moreover, the issues in dispute in the constitutional debate are numerous, however, the notwithstanding clause is not in the first place. We could instead want to repair the mess of 1982, that of 1987 and 1990 (Meech), or even discuss a more balanced sharing of federal and provincial responsibilities. Or put aside, for good this time, references to royalty in our parliamentary system.
Moreover, to come back to the Charter, when I was Minister of Justice in 1993, I spoke publicly about it.
I believed, and still believe, that the Charter of Rights and Freedoms is valuable and necessary. However, it should not be used randomly, which contributes to its decreasing importance, not gaining it.
In the courts, and I also know what I am talking about, it has become common to raise the Charter for often futile reasons. The direct consequence of this habit of raising the Charter as an argument partly explains the significant delay in cases before the courts, since the judges have the obligation to respond formally each time. The Chief Justice of the Court of Quebec expressly mentioned this recently: the Charter is important and breaches are relatively rare.
Canada is arguably one of the best countries in the world to live in. Fundamental rights are mostly respected, and we should be proud of that.
The Charter of Rights is there and we should respect it in the first place by avoiding invoking it at any time for questions that in no way justify it.