When Federal Justice Minister David Lametti reacted last week to the passage of Quebec’s language law reform, he pointed to the provincial government’s proactive use of the clause however to protect the law of the United States. constitutional challenges.
Lametti and other critics of Bill 96 say the government’s use of this clause — section 33 of the Canadian Charter of Rights and Freedoms — closes the debate and prevents a proper judicial review of the legislation. The proactive use of Section 33, which allows a government to repeal certain provisions of the Constitution, is an “unwanted negative consequence in our political system,” he said.
The Quebec government, for its part, says the use of the clause is legitimate and necessary to protect laws that are supported by most Quebeckers. The government calls Article 33 “the provision of parliamentary sovereignty.”
Bill 96, among other things, limits the use of English, one of Canada’s two official languages, to the public service and allows inspectors to conduct searches and confiscations on businesses without court orders. Proactive use of Article 33 means that the courts cannot declare Law 96 unconstitutional because of their possible violations of certain fundamental rights included in the Charter.
The other two recent cases in which the clause was nevertheless invoked outside of Quebec, by the Ontario government in 2021 and by Saskatchewan in 2017, were used to overturn court decisions. Quebec is the only province that has invoked the clause before the judicial review.
However, Lametti told reporters, “it was intended to be the last word in what is, in effect, a dialogue between the courts and the legislatures. It was not to be the first word.”
Emmett Macfarlane, a professor of political science at the University of Waterloo who studies the role of the Supreme Court in shaping public policy, said there is nothing in the Charter that indicates when Section 33 can be used. however, he does not believe that its preventive use was envisaged when the Charter was drafted in 1982.
“Quebec is right to say, legally, we can use it as a precaution and, at least in part, they are right to say that the clause is nevertheless a provision of parliamentary sovereignty, but it is also an unprincipled use of the non-parliamentary clause. however, “Macfarlane said in an interview Friday.
“It is a political maneuver to avoid having that negative court ruling that would be inevitable if they had not used the repeal clause.”
Constitutional lawyer Julius Gray argued in the Superior Court against Quebec’s secular law, known as Bill 21, which prohibits certain government employees 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 Article 33 can be used will be decided when the case reaches the Supreme Court.
Gray said he expects the high court to rule that provinces cannot use the clause as they wish.
“Parliamentary sovereignty is precisely what the Charter wants to get away with,” Gray said. “We all understand that parliamentary sovereignty has certain dangers: the government of the majority can become the tyranny of the majority.”
Benoît Pelletier, minister of the cabinet of the Liberal government of Quebec of Jean Charest, said that he supports the use by the government of Quebec of the clause however, a tool that he said is “at the heart” of the separation of powers in the Canadian legal system.
Article 33, he said, was included in the Charter to preserve parliamentary sovereignty, but also to maintain the balance of power between the judiciary and the government.
For Pelletier, the proactive use of the provision is not a problem because the courts can still review the legislation: a Supreme Court ruling on Bill 21 that upheld most of the law was more than 200 pages long, he said. In this ruling, High Court Judge Marc-André Blanchard found that Bill 21 violates fundamental freedoms such as freedom of religion, but was unable to overturn these elements of the bill because the law was protected by section 33. .
Pelletier said he believes the Quebec government is making “moderate” use of Section 33. “As a province, or as a nation, or as a political unit, it is normal for Quebec to make collective decisions other than those of the other provinces. “
Patrick Taillon, a professor of constitutional law at Laval University, said Quebec has been a kind of “champion” of the use of Section 33. The province has used it more than others, he said in an interview Friday. , “because it allows our elected officials to exercise some form of autonomy.”
The Supreme Court, he added, has already upheld the precautionary use of the clause, however, in a 1988 decision involving Quebec’s French signage legislation. This decision made it clear that the role of the court was not to decide whether it was right or wrong to use Article 33, but only whether it complied with the Constitution.
Macfarlane said what worries him is not just Quebec’s use of section 33. The Ontario government’s use of the 2021 clause however to protect a campaign finance law was also problematic, he said.
“I don’t think other provinces are immune to these populist impulses,” he said. “But obviously there is something different about the registration of Quebec with the clause nevertheless relating to all other provinces.
– This report from The Canadian Press was first published on May 29, 2022.