In the spring of 1982, René Lévesque, Quebec’s premier at the time, was furious. The Canada Act, a British law that accomplished the patriation of the Constitution, had been signed on April 17 by the Queen on Parliament Hill without Quebec’s consent. He felt deeply wronged by what he felt was Canadian trickery at the First Ministers’ conference held the previous November. He thought he had to respond by legal countermeasures. He asked his Justice Department for ideas.

Two of them have had fateful consequences to this day.

Those consequences are to be found in the more controversial sections of Bill 21 (which prohibits state employees from wearing religious symbols) and Bill 96 (which amends the Charter of the French Language). Both were adopted during the first term of Quebec’s current premier, François Legault. They are also felt in Bill 4, which was adopted earlier this month and abolished the oath to the King for members of Quebec’s National Assembly.

An act of political protest

But back to Lévesque. For his first response, he decided to use the notwithstanding clause in Canada’s new Charter of Rights and Freedoms as a form of political protest.

In June 1982, the National Assembly adopted a bill that inserted the clause in each of Quebec’s hundreds of laws. Even the Bees Act, hardly a threat to fundamental rights (of humans, at least) got its notwithstanding clause, which limited to the fullest extent possible the application of the Charter. This was because the Charter was deemed to be illegitimate, notably because it contradicted Bill 101 (Quebec’s Charter of the French language), and was therefore seen as a menace to Quebec’s jurisdiction over its language and culture.

In 1975, Robert Bourassa, Lévesque’s Liberal predecessor, adopted a Charter of Human Rights and Freedoms for Quebec. It was the last province to do so, but Quebec’s Charter is arguably the most extensive, and the people of Quebec were rather proud of it.

Since Lévesque had no objection to a charter of rights in principle, he did not invoke the Quebec Charter’s own notwithstanding clause to shield Bill 101 and all other Quebec laws from judicial review.

This massive, pre-emptive and purely political use of section 33 of the Canadian Charter by Lévesque in 1982 took six years to reach the Supreme Court.

The notwithstanding clause and the separation of powers

Robust public debate needed on use of notwithstanding clause

What constitutes the legitimate use of the notwithstanding clause?

In 1988, in the Ford case (no relation to the current Ontario premier), the highest court of the land struck down the section of Bill 101 that had imposed the official language of Quebec as the only language of commercial signs. It did so while stating that all the notwithstanding clauses were valid. It decided that the only restriction on their use was that they could not be dated retroactively to April 17, 1982 since such retroactive use was not authorized by the Constitution. The Supreme Court struck down the rule on French-only signs by using the Quebec Charter and the fact its notwithstanding clause had not been used since Lévesque had had no political grievance against it.

By 1988, Lévesque’s hundreds of notwithstanding clauses based on the Canadian Charter had expired because they had reached their limit of five years, and Bourassa, who was also his successor, had not renewed them. Bourassa did use the clause to counter the Ford decision temporarily while his cabinet wrestled with the longer-term solution we have now (bilingual signs with French prominence). He did not forget to use the Quebec Charter’s clause as well.

This short-term use of both clauses by a federalist government provoked such an outrage across the country it contributed to the demise of the Meech Lake Accord, a package of constitutional amendments that was meant to alleviate Quebec’s long-lasting and widespread outrage at patriation, which Lévesque felt should have abolished the monarchy. The central element of the Accord would have recognized Quebec as a distinct society within Canada. A nation has the right of self-determination under international law; a distinct society does not, which is why Bourassa and Mulroney could agree on the latter in the first place.

The bottom line is that Lévesque and later Bourassa normalized the use of the notwithstanding clause in both charters in Quebec and made it politically acceptable in its political culture, something that is alien to the rest of Canada, where the Canadian Charter is not perceived as an intrusion by another nation and has been celebrated wholeheartedly.

Lévesque’s second countermeasure also resonates to this day.

In lieu of abolishing the monarchy, a second oath is added

He was angry at the Queen, and he was anti-colonialist. Abolishing the monarchy as part of patriation was also apparently on the federal government’s wish list but was rejected by the other provincial premiers whose support the Supreme Court had decided was legally required. So, Lévesque sought to abolish the oath to the Queen (now the King) that section 128 of the Constitution Act of 1867 (then known as the BNA Act) demands of all members of Parliament and provincial legislative assemblies.

He was told he could not do this unilaterally, but he could add a second oath to the people of Quebec and its constitution. Since 1982, members of the National Assembly have taken both oaths, one more willingly than the other in most cases.

René Lévesque’s constitutional legacy lives on. It is a by-product of patriation. Now François Legault’s government wants to take it more than one step further.

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The National Assembly recently adopted Bill 21 and Bill 96, both containing notwithstanding clauses that apply to both charters of rights.

This has once again created indignation outside Quebec. Both laws are undergoing judicial review. Their opponents are asking the courts to, in effect, overrule the Supreme Court of 1988 in the Ford case. This kind of overruling is much more seldom seen in Canada than in the United States, where respect for judicial precedent has been undermined by ideological factors. So far, efforts to overturn the Ford case have been unsuccessful.

The National Assembly led by Legault and his justice minister, Simon Jolin-Barrette, has done more. Using a new and greatly expanded definition of a provincial constitution that has never been tested before the courts, Legault has gone where Lévesque and Bourassa would not. Under section 45 of the Constitution Act of 1982, provinces have exclusive jurisdiction over their constitutions, which, with the partial exception of British Columbia, have never been formalized in a single legal document.

Why not replace the monarchy with a monarchy of a different kind?

Monarchy’s rights, privileges and symbols in Canada can be changed

What would Canadian politics look like without a Queen or King?

Each of the 50 American states has a formal constitution, and Canadian provinces could also but have never made the effort. Provincial constitutions are derived from different sources (various laws, judicial decisions and unwritten but highly important conventions which define, for instance, the system of parliamentary government).

In this, they are no different from the British Constitution. The Canadian Constitution itself has only been partly formalized.

Provincial constitutions have never been definitively defined by the courts. When Lévesque and Bourassa were in office, the legal consensus across the country was that they were very limited and could not be used to change Quebec’s status or powers within Canada unilaterally.

The Legault government has now twice challenged that traditional legal view.

In Bill 96, it has sought to amend section 90 of the Constitution Act of 1867 to inscribe the concept of a Quebec nation within the Canadian Constitution.

This is beyond Bourassa’s wildest dreams.

If he had thought that possible, the referendum of 1995 might have been averted since it was partly caused by the failure of Meech Lake and the subsequent Charlottetown Accord. Also, a nation is not a mere distinct society.

What we have now is the sight of a Quebec justice minister who has printed a version of the Canadian Constitution that is different than in the rest of the country. His version contains a section 90Q self-recognizing the nation of Quebec. Section 90Q is before the courts.

Finally, earlier this month, the National Assembly adopted Bill 4, which purports to abolish the oath to the monarchy. Again, René Lévesque would have been delighted to do so.

There has been no expansion of provincial powers since his time that could justify this measure. The Supreme Court has said little on this subject yet, but it likely will have to redefine the limits of a provincial constitution.

Some are thinking that is exactly what the CAQ government is waiting for. Either its enlarged vision of a provincial constitution is accepted, and it serves as a springboard for more, or a future government adopts a provincial constitution in defiance of Canada’s basic law and asks for public approval in a new kind of referendum presented as a choice between constitutions.

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André Binette
André Binette is a constitutional lawyer in Montreal. He is also a former constitutional adviser to the government of Quebec. Twitter: @andrebin5.

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