In society in general and in the legal community in particular, there are many who are moved at the idea that the Government of Quebec is showing signs of wanting to use the derogatory provisions (“notwithstanding clauses”) as soon as concerns are involved. identity questions. But it is still necessary to understand in which context this use takes place.
This context is marked by the increasingly obvious judicialization of our political system, the non-adherence of Quebec to the repatriation of 1981-1982, the crisis of values which prevails between Quebecers and other Canadians, and a certain insensitivity of the courts. with regard to the specificity of Quebec. Let’s take a closer look at all of this.
Judicialization
Since the adoption of the Canadian Charter of Rights and Freedoms, the courts have been called upon to rule on a host of questions of a philosophical and even ideological nature. Whether it is about the life of the fetus, same-sex marriage, prostitution or medical assistance in dying, the courts make fundamental choices when it comes to the evolution of society. They are not to blame, however, since this was initially the will of those who drew up the Constitution (the constituent).
However, the increasingly creative way in which judges conceive and interpret the law as well as their obvious bias in favor of individual rights and freedoms as opposed to collective rights or interests lead them to set guidelines for our societal journey.
Among other things, in constitutional matters, the Supreme Court of Canada regularly appeals to the principles of broad, dynamic, teleological and evolving interpretation of the law to justify its conclusions in such and such a case. This court even invokes concepts such as the underlying constitutional principles or even the fundamental structure or architecture of Canada – concepts that are vague at will – to color the interpretation of constitutional texts.
The judicialization of the Canadian political system was clearly accentuated by the entry into force of the Canadian Charter. Since then, the state has been obliged to demonstrate the reasonableness of its measures and to draw inspiration for this from what is being done in other free and democratic societies in this world.
Non-adherence to repatriation
In 1982, the patriation of the Canadian Constitution was not acceptable to the then premier of Quebec, any more than it was to all of his successors, all parties combined. Repatriation was not acceptable because of what it contained, namely a Charter which limits the powers of the National Assembly of Quebec as well as a constitutional amendment procedure which only provides for financial compensation limited to certain matters. and which does not give Quebec any right of veto.
It was not acceptable either because of what it did not contain, namely a reform of the division of legislative powers and central institutions as well as measures favoring greater decentralization and greater flexibility of Canadian federalism. .
The exclusion of Quebec during repatriation is based in part on the highly questionable decision of the Supreme Court of Canada of September 28, 1981, in the now famous Reference: Resolution to amend the Constitution.
In this case, the Court adopted a constitutional convention which was not based on any precedent, that is to say which did not exist. In the name of this convention, the Court set aside the rule of unanimity which had until then been applied by political actors in matters which, such as repatriation, touched the heart of federal-provincial relations. The exclusion of Quebec also stems in part from the duplicity and surreptitious maneuvers of the political actors of the time.
Although the Canadian Charter is now better accepted by Quebecers than it was originally, its standardizing effect potentially jeopardizes the expression of Quebec’s unique identity, whether in terms of language, culture or culture. purely legal, or on that of identity in general.
The crisis of values
The specificity of Quebec is not formed only by language, culture and civil law. It is also based on institutions, a way of life and values. State secularism is one of these. The same is true of interculturalism.
In the name of its uniqueness, Quebec makes collective choices different from those of its federative partners. These choices are often challenged by the courts. They are also widely denounced or denigrated in “the rest of Canada”. If it wants to preserve its originality, Quebec cannot help but persist in its affirmation of identity and sign.
Federalism itself is a mode of organization of state powers which authorizes and promotes the exercise of law unlike each of its components or political units. By claiming this right, Quebec is simply placing its particularism at the service both of itself and of a certain Canadian ideal arising from and in conformity with the federal principle.
A certain insensitivity on the part of the courts
On the occasion of the various decisions it has rendered with regard to the Charter of the French language (Bill 101), the Supreme Court has never ceased to align the declarations of unconstitutionality. Sometimes it was in the name of freedom of expression. Sometimes, it was due to the application of article 133 of the Constitution Law from 1867. Sometimes again, it was under section 23 of the Canadian Charter, with regard to instruction in the official language of the minority. Even in the Solski decision, the Supreme Court cleverly substituted the criterion of “significant part of education” for that of “most of education”, which constitutes a dilution of Bill 101.
And what about the Nguyen judgment, in which the Supreme Court authorized the use of “bridging schools” as a means of circumventing the strict application of Article 23 in question, when this strict application would undoubtedly have been more consistent with the original intention of the grantor.
More recently, it was the State secularism law which was to be partially invalidated by the Superior Court of Quebec. It could possibly have been in its entirety had it not been for the use of overriding provisions.
All this context which we have just described clearly demonstrates, in our opinion, the usefulness of the derogatory provisions in a federal State which, like Canada, also wants to be multinational, if only because of the existence of the Quebec nation, Aboriginal peoples and Acadian people.
Still in the context described above, it is only normal for the derogatory provisions to be used in a preventive manner and in a somewhat more frequent manner than in recent years. Moreover, even if they were used only as a preventive measure, the derogatory provisions would not necessarily avoid legal debates. They would only prevent, it seems, the sanction of unconstitutionality.
To condemn the use of derogatory provisions or to require that it be only occasional, is to deprive, consciously or not, in fact, of Quebec of one of the only instruments or mechanisms at its disposal to assert its distinct and uniqueness and its national characteristics in a space, the Canadian space, which sometimes tends towards the leveling and gradual absorption of its intrinsic diversity.
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