When Federal Justice Minister David Lametti responded last week to the adoption of Quebec’s language law reform, he aimed to use the provincial government’s pioneering provision to protect the law from constitutional challenges.
Other critics of Lametti and Bill 96 argue that the use of that clause – Article 33 of the Charter of Canadian Rights and Liberties – stops the debate and precludes proper judicial review of the law. He said the active use of Article 33 to allow a government to violate certain provisions of the Constitution was “an unexpected negative effect on our political system”.
The Quebec government, meanwhile, says it is legal and necessary to protect laws supported by Quebec’s majority. The government calls Section 33 the “Parliamentary Sovereignty Rule”.
Bill 96, among others, restricts the use of English, one of Canada’s two official languages in the public service, and allows researchers to conduct searches and seizures in businesses without warrants. The courts cannot declare Bill 96 unconstitutional, as the active application of Article 33 is likely to infringe on some of the fundamental rights enshrined in the Charter.
Two other recent lawsuits filed outside of Quebec – by the Ontario government in 2021 and by Saskatchewan in 2017 – were used to defy court rulings. Quebec is the only province to implement the subdivision before a judicial review.
However, Lametti told reporters, “This was the last word in the conversation between the courts and the legislature. It should not 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 that outlined when Section 33 could be used. However, he acknowledged that their use of the charter was not conceivable when it was drafted in 1982.
“Quebec is right, legally, we can use it in advance, although it is somewhat correct to say that they are a parliamentary sovereign rule, but it’s an unprincipled rule,” Macfarlane said. An interview on Friday.
“This is a political maneuver, a political maneuver to avoid that negative judicial verdict, which would have been inevitable if they had not used this rule.”
Constitutional Advocate Julius Gray has argued in the High Court against Quebec’s secular law – known as Bill 21 – which prohibits certain government employees from wearing religious identities in the workplace. That case is in the Court of Appeals. He said in a recent interview that the question of how to apply Section 33 will be decided when it comes to the Supreme Court.
Gray said he hopes the High Court will rule that the provinces cannot use this section of their choice.
“Parliamentary sovereignty is precisely what the charter wants to move away from,” Gray said. “We all understand that there are some dangers to parliamentary sovereignty – the rule of the majority will become the tyranny of the majority.”
Benoit Bellettier, cabinet minister for the Quebec Liberal government in Jean-Zarstein, said the Quebec government supported the use of the rule, even though it was “at the heart” of the separation of powers in Canada’s legal system.
He said Article 33 was included in the charter to protect parliamentary sovereignty and to maintain a balance of power between the judiciary and the government.
According to Pelletier, the active application of this rule is not a problem because the courts can still review the law – a High Court ruling in Bill 21, where most of the law is over 200 pages long, he said. In that judgment, Supreme Court Judge Mark-Andre Blanchard found that Bill 21 violated fundamental freedoms, such as religious freedom, but he could not reduce those elements of the bill as they were protected by Section 33 of the Act.
Pelletier said he considered the Quebec government to use Section 33 “moderately”. “As a province, or as a nation, or as a political entity, it is natural for Quebec to make joint elections different from other provinces.”
Patrick Taillon, a professor of constitutional law at Université Laval, said Quebec was a “champion” in the use of Article 33. The province has used it more than others, he said in an interview on Friday, “It allows our elected officials to exercise a certain kind of autonomy.”
The Supreme Court, in a judgment incorporating Quebec’s French Language Act of 1988, has already affirmed the preventive application of the rule. It was not the role of the court to determine whether the use of Article 33 was right or wrong, but that decision only clarified whether it was in accordance with the Constitution.
Macfarlane said the use of Section 33 in Quebec was not just about him. The Ontario government’s use of a clause to protect the 2021 Campaign Finance Act was also problematic, he said.
“I think other provinces are not getting rid of these populist stimuli,” he said. “But, compared to all the other provinces, there is something unique about Quebec’s record.
– This report by The Canadian Press was first published on May 29, 2022.