At the time it was adopted, the Quebec Charter accomplished a revolution. For the first time, a province acquired an innovative instrument that would protect its population not only against discrimination, but against attacks on all fundamental rights. Quebec proudly added economic and social rights, which aim to allow every human being to lead a dignified life.
Professor Jacques-Yvan Morin, who passed away recently, was known for his work in favor of the “progressive constitutionalization” of the Quebec Charter, that is to say the strengthening of the position of the Charter in the hierarchy of Quebec laws. This would allow Quebec to achieve its primary societal objective of protecting fundamental rights. Two tools could, according to him, contribute to this.
The first was the addition of a reinforced majority requirement to modify the Quebec Charter. By requiring this, we would ensure that amendments to the Charter would receive more than a simple majority of the National Assembly, which was, and still is, the required standard.
Mr. Morin said that for it to “deserve its beautiful name of “charter””, it had to be difficult to amend, for example by following the rule of two thirds of support.
This would protect the population from changes that a somewhat hasty majority might want to make to the Charter.
Although Mr. Morin did not see his project come to fruition, the fact is that from 1975 to the adoption of Bill 21, all modifications to the Quebec Charter were made almost unanimously by the National Assembly. .
Supremacy clause
The second means was the supremacy clause found today in article 52 of the Quebec Charter. It indicates that Quebec laws must respect the Quebec Charter. But since the Legislative Assembly cannot bind itself for the future, it cannot be required to respect a commitment such as “I will never adopt a law against the Quebec Charter” (supremacy clause). To be able to bind itself for the future, it must add “unless I expressly mention that my law applies notwithstanding the Charter” (derogation clause).
This derogation clause is therefore necessary to ensure that the Quebec Charter remains at the top of Quebec laws. We are, in other words, condemned to live with it. This did not prevent Mr. Morin from dreaming that one day, Quebec would leave.
Indeed, he saw the escape clause as a “reflection of a narrow conception of the British principle of parliamentary sovereignty”. According to him, it weakened the protection of fundamental rights by putting them “at the mercy of a majority of deputies acting in an untimely manner”1.
That said, although it appears to be here to stay, the notwithstanding clause is not intended to give lawmakers a blank check.
However, lately, we are trying to sow the false idea among people that rights are barriers to the autonomy and emancipation of the Quebec community.
The notwithstanding clause has become an instrument of governance which restores its sovereignty to parliament. And the idea of a Quebec that unreservedly protects the rights of its population has faded into oblivion.
This was joined by the idea that modifications to the Quebec Charter should be made more difficult to prevent “untimely changes” by a simple majority of deputies. On the contrary, breaking tradition, and opposing it with the usual almost unanimity, the government has had the Quebec Charter modified under a gag order, twice rather than once.
We can always argue that elected officials are in the best position to know what is good for the population. That on certain important social issues, courts should not have the ability to overturn the will of those who are democratically elected. This very British idea seems to have the wind in its sails. It emphasizes the trust that we should have in elected officials. When the population is “angry” with elected officials, they must work hard to “regain the trust” of the population.
However, trust in elected officials, even if it is laudable, is not enough. There is a reason that pushed the vast majority of nations, including Quebec, not to be satisfied with this. To invite judges to play a role in the protection of individual rights through the review of the constitutionality of laws with regard to fundamental rights. For many, to whom history will have subjected horrors, elected officials also need a counterweight, that of the courts. These contribute to respecting the rule of law. Perhaps the courts have erred at times. Perhaps they should have done more to protect the distinct character of the Quebec Charter. However, this does not justify throwing the baby out with the bathwater.
Rather than moving Quebec towards the constitutionalization of the Quebec Charter, the latest legislative initiatives have gone backwards. By breaking the long tradition of modification by quasi-consensus, we have shown how easy its text is to change. By using the notwithstanding clause repeatedly, we have shown how easy its text is to circumvent.
1. Read The Quebec Charter: origin, issues and perspective (p. XXI)
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reference: www.lapresse.ca