The Minister of Justice, Simon Jolin-Barrette, had a good idea. Quebec laws should be assessed against the Quebec Charter of Rights and Freedoms rather than the Canadian Charter.
Posted at 6:00 a.m.
The problem is that Mr. Jolin-Barrette is only making this proposal to add a nationalist feather to his already well-stocked hat on this side. And as is the case in this kind of political intervention by a Minister of Justice, it is very likely not to have the expected effects.
It is therefore the story of two charters that we would like to oppose and which, in fact, are practically Siamese twins.
Let’s say right away that the Minister is right on one point: the Canadian Charter has a legitimacy deficit in Quebec, which none of the governments recognized as having been imposed following the unilateral patriation of the Constitution in 1982.
That said, the change will not be very great since the Quebec Charter and the Canadian Charter are practically identical. The late Roger Tassé, former Federal Deputy Minister of Justice and author of the Canadian Charter, stated in his memoirs that he had had two models: the Quebec Charter – adopted before the Canadian Charter – and the Universal Declaration of Human Rights. UN man.
We often forget that the Quebec Charter was adopted before the Canadian Charter, unanimously by the National Assembly, and with the support of sovereignists as well as federalists.
Since the charters are practically twins, a Quebec law that would be contrary to the Canadian Charter would also be contrary to the Quebec Charter. Moreover, when the Supreme Court invalidated the provisions of Bill 101 on signage, it had done so under the Quebec Charter.
There is therefore no guarantee that the courts would make a different interpretation if they had to use only the Quebec Charter, whatever the minister may say.
But what Mr. Jolin-Barrette forgets is that the Quebec Charter also has a legitimacy deficit. It is a simple law of the National Assembly which can be amended by simple majority, according to the wishes of the government of the moment. Normally, a Charter which protects fundamental rights must have another status.
We could, for example, ensure that the Quebec Charter can only be amended by a two-thirds majority of the National Assembly. After all, if it’s good for appointing the head of the Permanent Anti-Corruption Unit, it should be good for the law that guarantees the basic rights of citizens.
Similarly, the government should guarantee a debate of a certain number of hours in the National Assembly to avoid adopting amendments under closure. And it should be prohibited to amend the Charter of Rights at the same time as another law.
This is, alas, what Mr. Jolin-Barrette did for the State Secularism Act (“Law 21”). It was the first time the Charter had been amended without a consensus of the parties in the National Assembly and, even more odious, the first time under gag order.
The principle is simple: the government cannot be both the referee and one of the players. A number of democratic and procedural safeguards are therefore needed to prevent such abuses.
In fact, the Quebec Charter should not allow for derogation either before the courts have ruled. To ensure that there can be debate on the conformity of a law with fundamental rights, otherwise it would make the debate impossible as soon as the law is adopted.
To justify his request, Mr. Jolin-Barrette takes up the argument of collective rights against individual rights, an old duck that has never flown very high because of the lead in its wings.
Collective rights are exercised through the expression of the popular will, ie the election of deputies to the National Assembly. But the very idea of a Charter of Rights and Freedoms is to shelter certain rights from the sometimes capricious will of the elected officials of the moment.
There has to be a balance between the will of a majority of members and the rights of the minorities that we have chosen to protect. Between the democratic legitimacy of an elected government and the rights of minorities.
And that is why, in all democratic countries, this arbitration is entrusted to the courts.
But when Mr. Jolin-Barrette talks about collective rights, he uses a dubious concept that would allow him to be judge and judged. To be at the same time referee of the match and player on the ground.
In any case, the courts are best equipped to settle this type of debate. Among other things, with section 1 of the Canadian Charter, according to which the rights and freedoms guaranteed by the charter “can only be restricted by a rule of law, within reasonable limits and whose justification can be demonstrated in the context of a free and democratic society”.
This is a very wise test that Mr. Jolin-Barrette should not fear.