Having done so for the Secular Act, Legault’s government again chose to use the clause though of the Canadian Charter of Rights and Freedoms to protect its reform of Bill 101. This decision does the same. The more reaction that he divides the constitutionalists.
Is Quebec right in wanting to sidestep Charter obligations in this way, even before the courts can rule on the law?
By increasing the use of this tool, does Legault’s government set a precedent that could downplay the importance of a provision whose use should remain exceptional?
We spoke to two experts who took a very different view of the issue.
Since the Canadian Charter was adopted in 1982, there have been many, many challenges to the French language charter under the Canadian Charter. almost without interruption, says Professor of Law at the University of Sherbrooke, Guillaume Rousseau, who believes that the government has done well in resorting to the tool of disruption.
By dedicating a file
Although condition In its future law, the government limits the risk of its provisions being invalidated, as many articles of Bill 101 already existed in the past, such as monolingual commercial signage in French or the Quebec requirement for access to English primary and secondary schools.
There does not appear to be a provision in Bill 96 that would clearly be invalidated by Canadian charters or the Quebec Charter. But among other things with regard to the right to equality – a right subject to a highly variable law, with unclear criteria – there is necessarily a certain legal uncertainty., he explains.
And this insecurity increases even more, he says, because for some time courts have tended to suspend laws once they come into force and before adjudicating on the merits, laws are challenged in the name of human rights.
One thinks, among other things, of the state religious neutrality law adopted by the Couillard government and the reform of English language school boards imposed by the Legault government.
This is quite surprising because, traditionally, case law has been more to say: the law is supposed to be valid.
However, the attorney, who was also a former adviser to Minister Simon Jolin-Barrett on the subject of secularism, says the inclusion of the obstruction tool in the law reduces the risk of it being suspended.
If some aspects of New Law 101 are challenged, we can just say, while awaiting trial: the law should not be suspended because there is a derogation clause and because there is precedent to that effect in the judge’s ruling., Determines.
Here he is referring to the July 2019 ruling by Justice Michael Yergo of the Supreme Court. The latter then refused to suspend Law 21 on the secularization of the state, stressing that the legislature had knowingly chosen to use the opt-out tool and that the court should
in consideration. The Court of Appeal upheld this decision.
refusal of dialogue
However, Professor of Public Law and Director of the Department of Legal Sciences at the University of Quebec in Montreal, Pierre Bosset, pleads,
Originally, recourse to this mechanism was seen in a process of dialogue between Parliament and the courts. It was supposed to be exceptional at that time.
He is among those who disagree with what he considers a political use of Section 33 of the Constitution Act 1982.
By resorting to restriction in a preventive manner, any dialogue with the judiciary is rejected. We tell ourselves that we will resolve the matter in advance and that the courts will not be able to rule.
Legault’s government is believed to be on the wrong track for several reasons. First, because it does not allow for an important legal discussion of the basic rights of citizens, such as respect for freedom of conscience or the right to access public services in one of the two official languages.
Second, because the use is not only unjustified, but also carries the risk of far-reaching consequences.
This is the danger. Often this exemption mechanism is used without a parliamentary debate on the need and extent of the exemption.
So much so that the Supreme Court, in his opinion, should question the validity of the exemption and the conditions to be present when using this device. Professor Bosset insists that Legault’s government has a duty to justify itself.
According to him, the secularism of the state attests to this: Quebec justified its decision
without complexes Exempting Bill 21 from the application of the Quebec and Canada charters the right of parliamentarians to decide which rules should prevail in their jurisdiction. However, the argument does not hold, Pierre Bosset believes, since the law was adopted under a gag order, thus without all elected officials having the opportunity to comment.
The emergence of a new doctrine?
Besides direct effects, Professor Guillaume Rousseau also sees a situation CAQThe application of legal doctrines, which has long been debated among legal scholars, but has been timidly applied until now.
There is very strong case law in Quebec, dating back to [Henri] Brown et al [Guy] Tremblay, perhaps the greatest framer of constitutional law in Quebec, who has said since the adoption of the Quebec Charter: “It is indeed a Charter of individual rights and liberties, but in Quebec, among other things, with regard to questions of identity, culture and language, it is nonetheless necessary to retain this possibility It is up to the legislator to adopt measures taking into account not only individual rights.”
François Legault himself seemed to echo these theories on the sidelines of Bell 96.
The insulting clause is a legitimate tool that strikes a balance between individual rights and then collective rights. And not only do we have the right, but our duty to use this clause nonetheless, especially when the very basis of our existence as a French-speaking people in America is at stake.
Exactly, Pierre Bosset insists: Contrary to what some of its critics claim, the Supreme Court has already shown that it is capable of being sensitive to issues of identity.
When I challenged Bill 101, she said
Yet it has shown itself to a certain point sensitive to this particularity in Quebec. That’s when I whispered in the ear of a Quebec legislator that without going so far as to ban commercial signage in other languages, we could still legitimately enforce the apparent dominance of French..
For Professor Rousseau, the use of the instrument of restraint to defend the secularism of the state and the protection of the French language, together with the statements of the Prime Minister, nevertheless illustrate a new desire to assert legislative power in the face of the judiciary. authority, in order to better defend the specific identity of Quebec.
There, the government assumes that and I think it’s a good thing.
Pierre Bosset reads similarly here.
There is indeed this tension between the French-inspired republican approach – but it has not translated into law, constitutional law or common law, neither in Canada nor in Quebec – and the law in force that wants more suited to a form of liberalism.
An example could make a school?
Other counties may also tend to take the same approach. After all, the mechanism is there, and nothing officially prevents another government in the union from using it.
Unhappy with the Supreme Court’s ruling, Ontario Premier Doug Ford announced in 2018 that he would not hesitate to use Section 33 of the Canadian Charter to reduce the number of seats on the Toronto City Council.
This is another example of asylum
Unbound Available, according to Professor Beausett, more to the leadership style of the Prime Minister than to his Quebec counterpart, than to legal considerations.
François Legault, Doug Ford and others still believe that what Alexis de Tocqueville wrote about the United States in 1848, befits Canadian reality, i.e.
That there is hardly any political question, which sooner or later does not resolve itself in a judicial question.