Prime Minister Justin Trudeau's recent comments about the worrisome nature of the notwithstanding clause ruffled feathers in Quebec.Jacques Boissinot/The Canadian Press
The 75th anniversary of the Quebec flag was celebrated on Jan. 21 with the unfurling of the biggest-ever fleurdelisé on the esplanade of Montréal’s Place des Arts. A who’s who of local politicians gathered in the cold for one of those displays of unbridled patriotism for which Quebeckers are known.
Can anyone imagine Ontarians getting even slightly verklempt about their flag?
The very same morning, Quebec Premier François Legault took to social media to denounce “a frontal attack on our capacity as a nation to protect our collective rights” after Prime Minister Justin Trudeau had told a La Presse reporter he was considering asking the Supreme Court of Canada to rule on the pre-emptive use of the notwithstanding clause by certain provinces.
“The idea of having a Charter of Rights and Freedoms is to protect us against the tyranny of the majority,” Mr. Trudeau said. “In using the notwithstanding clause in [a pre-emptive] manner, we have reduced the political costs of suspending fundamental rights. That’s why I’m worried.”
The Prime Minister’s comments were not directed only at Quebec. He also singled out Ontario Premier Doug Ford’s government, which last fall pre-emptively invoked Section 33 of the Charter to shield back-to-work legislation aimed at educational support workers from a legal challenge. But that law was withdrawn after a public backlash over the Ford government’s attempt to interfere with the right to strike. Mr. Ford faced the immediate political costs of going against the popular will.
This is what most of the authors of the 1982 Constitution predicted would happen if any government tried to abuse Section 33. “Political accountability is the best safeguard against any improper use of the [notwithstanding] clause by any parliament in the future,” Ontario’s then-attorney-general Roy McMurtry wrote at the time.
In late 1981, after then-prime minister Pierre Trudeau and the premiers, except Quebec’s René Lévesque, approved a constitutional package that included the Charter and its “override clause,” then-federal justice minister Jean Chrétien told the House of Commons: “Experience has demonstrated that such a clause is rarely used and when used it is usually not controversial.”
Quebec’s recent use of the notwithstanding clause to insulate two laws from judicial review disproves that. But Bill 21, which bans certain public employees from wearing religious symbols, and Bill 96, which extends protections for the French language, are also quite popular among Quebeckers. So, Mr. Trudeau’s “tyranny of the majority” comment appears to have been directed specifically at Quebec.
Mr. Legault, and I suspect most Quebeckers, certainly took it that way.
Why the provocation? It is hardly news that most Quebeckers consider collective rights, particularly as they relate to language and secularism, to be as worthy of protection as individual ones. And they do not consider themselves tyrannical for believing so. They have been reminded endlessly by their politicians that the concept of collective rights has been validated countless times in European courts, and even in Canadian ones.
Besides, Justice Minister David Lametti had already made it known several weeks ago that the federal government would intervene if Bill 21 comes before the Supreme Court, which is virtually certain to occur after the Quebec Court of Appeal rules on the law. The pre-emptive use of the notwithstanding clause is a central part of the appeal.
The Quebec Superior Court ruled in 2021 that it could not strike down most of Bill 21′s provisions because the pre-emptive use of the notwithstanding clause had made the law “legally unassailable.” The Supreme Court may or may not agree. But there is no reason for Ottawa to ask the court for a reference on a matter that is already headed its way.
Rather, Mr. Trudeau’s outburst in La Presse appeared aimed at stoking indignation among Quebec nationalists, a tried-and-true political tactic used by federal Liberals in the province. While the Tories are currently leading the Liberals in most national polls, they still trail the Liberals and Bloc Québécois in Quebec. Increasing his party’s popularity in Quebec is Conservative Leader Pierre Poilievre’s clearest path to winning a plurality of federal seats in the next election. But the Bloc stands in his way.
Liberal support is concentrated in the Montreal region, home to most of the province’s anglophones, minorities and progressive voters, as well as in western Quebec. The rest of the province, outside Tory strongholds in the Quebec City region, has seen several tight races in recent elections. The Conservatives and Bloc compete for the same small-c conservative voters. Anything that helps the Bloc hurts the Tories. Mr. Trudeau’s “tyranny” comment was a gift to bloquistes that had the intended effect of unleashing an avalanche of nationalist outrage.
If one didn’t know better, one might say we were on the verge of a federal election campaign.