Federal Justice Minister David Lametti asks a good question. And it is not because it offends certain sensitivities in Quebec that it is irrelevant: should recourse to the derogation clause of the Constitution (often called “notwithstanding”) be invoked before or after the court decision?
Posted yesterday at 6:00 a.m.
It may seem like a simple procedural matter, but it’s much more than that. The question is whether the mere mention of the derogation clause in a law puts an end to all debate and must therefore prevent any challenge or consideration by the courts.
The derogation clause is an essential compromise of the patriation of the 1982 Constitution. But the question of the form in which the derogation should be invoked was not mentioned.
In 1988, the Supreme Court indicated that the only obligation was to say in the law that it applied by derogation despite the Charter of Rights.
But sometimes the court wants to clarify its previous decisions. This is what Mr. Lametti wants to ask him. This is not to question the relevance of the notwithstanding clause, as we have sometimes heard from representatives of the Liberal Party – Paul Martin, during the 2006 election campaign, had even promised to abolish – but to establish a procedure that allows for debate. That is what is at issue here.
For the Legault government, the derogation not only puts the law beyond the reach of an unfavorable decision by the courts, it also wants the legal debate simply not to take place.
This was not necessarily the intention of those who participated in the patriation of the Constitution. For example, Saskatchewan NDP Premier Allan Blakeney said at the time: “In several key areas, Parliament [fédéral] and legislatures can override a court’s decision that would infringe upon the fundamental social institutions of a province. Clearly, in his mind, the recourse to notwithstanding should therefore intervene after and not before a decision of the courts.
On the one hand, because the right to challenge a law before a court is a fundamental right which is recognized as much by the Canadian Charter as by the Quebec Charter of Rights and Freedoms.
On the other hand, because having a conversation between the judiciary and the legislature is beneficial for society and can find compromises that make it possible to reconcile the rights of each.
The best example is the case of commercial signage, which was the subject of one of the first challenges to Bill 101. A decade had passed between the passage of Bill 101 and the Ford judgment of the Supreme Court in 1988.
A decade in which there was public debate and two lower court decisions. At the Supreme Court, the court had a solution to propose, namely the rule of the clear predominance of French.
The Bourassa government initially refused this compromise and adopted Bill 178, which resorted to notwithstanding.
After a judgment of the courts, if the elected officials are convinced to be right, they can very legitimately impose their point of view thanks to the derogatory clause. This demonstrates that we are not in a “government of judges”.
But back to Bill 101 and the Bourassa government. The duration of the derogation being limited to five years, it ended in 1993. The National Assembly then lifted the ban on Anglophone signage and amended the law to require that French be displayed “clearly predominant as suggested by the Supreme Court. This law did not contain any overriding provision.
It may have been a long detour, but in the end, a solution respectful of the rights of all ended up winning. After the courts have ruled. Not before.
What the Legault government is doing with law 21 on secularism and law 96 on language is to prohibit debate on issues that are controversial.
And, by his attitude, Prime Minister Legault finds himself saying that he is the only one to be right and that any debate is not only useless, but that there should also not even be any debate.
It should come as no surprise that when Bill 21 on secularism was adopted, the Legault government passed a bill containing not only the derogatory clause, but also – for the first time in its history – substantive amendments to the Quebec Charter of Rights and Freedoms without a consensus of the National Assembly and under the closure that put an end to parliamentary debates.
When we show so much casualness in the face of the courts and fundamental rights, we should not be surprised that someone wants to mark out the use of the derogation clause. By ensuring that it intervenes after the debates instead of preventing them.