When Federal Justice Minister David Lametti reacted last week to the adoption of Quebec’s language law reform, he focused on the provincial government’s proactive use of the independence clause to protect the law from constitutional challenges.
Lametti and other critics of Bill 96 say the government’s use of the clause, section 33 of the Canadian Charter of Rights and Freedoms, has stalled the debate and prevented proper judicial review of the law. The proactive use of Section 33, which allows the government to repeal certain provisions of the Constitution, is “an unintended negative consequence in our political system,” he said.
The Quebec government, meanwhile, says the use of the clause is legitimate and necessary to protect laws that are supported by a majority of Quebec residents. The government calls section 33 “a provision on parliamentary sovereignty”.
Bill 96, among other things, restricts the use of English – one of Canada’s two official languages - in the public service and allows inspectors to search and seize businesses without orders. The proactive use of section 33 means that the courts cannot declare Bill 96 unconstitutional due to its potential violations of some of the fundamental rights enshrined in the Charter.
The other two recent cases in which the independence clause has been used outside Quebec – by the Ontario government in 2021 and by the Saskatchewan government in 2017 – have been used to overturn court decisions. Quebec is the only province to invoke the pre-trial clause.
The independence clause, Lametti told reporters, “should have been the last word in what is, in practice, a dialogue between the courts and the legislature. It was not meant to be the first word.”
Emmett McFarlane, a professor of political science at the University of Waterloo who studies the role of the Supreme Court in shaping public policy, said there was nothing in the Charter to outline when section 33 could be used. However, he said he did not think so. that its use was envisaged in the drafting of the Charter in 1982.
“Quebec is right to say that we can legally use it preventively, and they are at least partly right to say that the independence clause is a provision of parliamentary sovereignty, but it is also unprincipled to use the independence clause,” McFarlane said in an interview Friday. .
“This is a political maneuver to avoid this negative court decision, which would have been inevitable if they had not used the independence clause.
Constitutional attorney Julius Gray has challenged before the Supreme Court the Quebec Secularism Act – known as Bill 21 – which prohibits certain government officials from wearing religious symbols at work. This case is before the Court of Appeal. He said in a recent interview that the question of how section 33 could be used would be resolved once the case goes to the Supreme Court.
Gray said he hoped the Supreme Court would rule that the provinces could not use the clause as they wished.
“Parliamentary sovereignty is exactly what the Charter wants to get out of,” Gray said. “We all understand that parliamentary sovereignty poses certain dangers – the rule of the majority can become the tyranny of the majority.”
Benoit Pelletier, a cabinet minister in Jean-Charest’s Liberal government in Quebec, said he supported the Quebec government’s use of the independence clause, an instrument he said was “at the heart” of the separation of powers in Canada’s legal system.
Section 33, he said, is included in the Charter for the Preservation of Parliamentary Sovereignty, but also for maintaining the balance of power between the judiciary and the government.
For Peletti, the proactive use of the provision is not a problem because the courts can still review the legislation – the Supreme Court’s ruling on Bill 21, which confirms most of the law, is more than 200 pages long, he said. In that decision, Supreme Court Judge Marc-Andre Blanchard found that Bill 21 violated fundamental freedoms such as freedom of religion, but he could not delete these elements from the bill because the law is protected by section 33.
Pelletier said he believed the Quebec government was using “moderate” section 33. “As a province, or as a nation, or as a political entity, it is normal for Quebec to make collective decisions that are different from those of other provinces.” “
Patrick Tayon, a professor of constitutional law at Laval University, said Quebec was something of a “champion” in the use of section 33. The province used it more than others, he said in an interview Friday, “because it allows our elected officials to exercise a certain form of autonomy. “
The Supreme Court, he added, has already upheld the preventive use of the independence clause in a 1988 ruling involving Quebec’s French-language legislation on signs. It is clear from this decision that the role of the court is not to decide whether it is right or wrong to use section 33, but only whether it complies with the Constitution.
McFarlane said it was not just Quebec’s use of Section 33 that worried him. The Ontario government’s use of the independence clause in 2021 to protect campaign finance law was also problematic, he said.
“I don’t think other provinces are immune to these populist impulses,” he said. “But there is clearly something different in Quebec’s achievements with the independence clause compared to all other provinces.
– This report of The Canadian Press was first published on May 29, 2022.
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