The existence in our Constitution of a clause allowing our elected representatives to derogate — to deviate — from the individual rights guaranteed by the Canadian Charter (and Quebec’s) is not irreconcilable with democracy. Neither is denying the courts the opportunity to intervene.

In a democratic regime like ours, it is incumbent upon our representatives to ensure respect for these rights, but also to perform the delicate task of striking a fair balance between them and the interests of the majority. The problem is that the majority and its representatives might be tempted to use the derogation clause — better known as the notwithstanding clause — to impose restrictions on individual rights that could go beyond what is necessary or justifiable, and to prevent courts from scrutinizing such limits.

At present in Quebec, with the tabling of the contentious Bill 21 — the proposed ban on religious symbols in the public sector — it is being argued that the democratic principle endows our elected representatives, and them alone, with the power to balance the will of the majority with the rights of individuals. It is up to the elected representatives to judge whether the limits to these rights all have a rational connection with the objective of protecting the “collective rights of the Quebec nation” to which the Bill refers. Part of the argument is that courts must not replace the National Assembly; hence the use of the derogation clause.

Maybe so. But to claim that the debate leading to the adoption of a law infringing individual rights and including a derogation clause is truly democratic, we will have to remember that not all members of the Quebec nation, and therefore of the National Assembly, speak with one voice. They are not (even its French-speaking members) carbon copies of Minister Simon Jolin-Barrette and Premier François Legault.

Consequently, assuming that the abstract principle of laïcité — state secularism — is unanimously accepted, all members of the National Assembly (and not only those of the Coalition Avenir Québec) will have to reflect seriously on the nature of the rules necessary for its concrete implementation. Indeed, it is those specific rules and mechanisms that threaten to undermine the fundamental rights of minorities, who are also part of the Quebec nation.

In short, to justify the suppression of the debate before the courts and to claim that it is democratically legitimate to adopt a law infringing individual rights while including a derogation clause, proof will be required that an open, informed and nuanced debate has taken place in the National Assembly — a debate focusing on the details of the implementation of the principle of secularism, and on the delicate balance to be struck between the wishes of the majority and the rights of minorities.

This implies, at a minimum, that all political parties have a voice as representatives of the electorate’s diversity of views, thus excluding procedures aimed at gagging the opposition. In the absence of real deliberation, a political decision that infringes on fundamental rights and includes a clause prohibiting the courts from intervening can hardly be described as legitimate. It also implies, at a minimum, that such a law cannot be adopted by a single party (especially if its parliamentary majority is based on 37.42 percent of votes, as it is for the Coalition Avenir Québec).

Currently, a simple majority of voting MPs allows for the adoption of legislation restricting the scope of a constitutional right and including a derogation clause. A majority government can, therefore, pretend to listen to other parties, and then enact its legislation while depriving the courts of the right to review its constitutionality.

In addition to the two conditions set out above, three modalities could be added to the conditions for triggering derogations. These would give greater legitimacy to the decision to use them. Recourse to these modalities requires no constitutional amendments. The measures proposed here could be adopted informally or, preferably, by means of legislation. Indeed, nothing prevents ordinary legislation from promoting democracy to a greater extent than what the Constitution provides.

If, for example, there were a strengthening of the majority that’s needed to adopt a derogation clause (for example, two-thirds of the total number of MPs — as opposed to voting MPs), a measure of participation from the opposition would be required, and the ensuing debate could give the requisite moral force to a law restricting the scope of a constitutional right and including a derogation clause.

Furthermore, any debate in the National Assembly should be preceded by a general public consultation held under the authority of a parliamentary committee. Indeed, if, in addition to the use of a strengthened majority, a law restricting the scope of a constitutional right and including a derogation clause could be adopted only after serious consideration of the interests at stake, its legitimacy would be significantly enhanced.

Incidentally, the Quebec Human Rights Commission recommended in 2003 the adoption of these two suggestions for amendments to the Quebec Charter. It suggested that any amendment to the Charter “be subject to the approval of two-thirds of the Members of the National Assembly” and “be submitted for general public consultation, held under the authority of the relevant Committee of the National Assembly.”

Finally, the provision should not be resorted to preemptively, as is the case with Bill 21. The courts could then help to fuel the democratic debate with their legal perspective.

The members of the Quebec nation might be unanimous about the need for state secularism, but they certainly do not all share the same ideas and beliefs about its implementation. The courts might be dismissed and the task of balancing the wishes of the majority and individual rights might be assigned to politicians, but that is all the more reason for studiously honouring the deliberative dimension of the democratic principle.

Photo: Shutterstock by Myvisuals 

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Jean Leclair
Jean Leclair is a law professor at the Université de Montréal. His teaching and research interests include legal theory, Canadian legal history, constitutional law and Aboriginal legal issues. He was one of four Pierre Elliott Trudeau Foundation fellows for 2013.

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