Quebec Bar Association Sounds Alarm on Erosion of Rule of Law
While Canadians often express dismay at perceived lawlessness in the United States, a similar erosion of constitutional safeguards is unfolding closer to home, according to legal experts in Quebec. The Barreau du Québec has issued a stark warning this week regarding the provincial government's repeated and pre-emptive use of the notwithstanding clause to pass legislation.
Systemic Use Creates a Constitutional Imbalance
During National Assembly hearings on Bill 9—legislation designed to reinforce the controversial religious symbols law, Bill 21—lawyers for the bar association argued that the systematic invocation of this exceptional measure creates a dangerous rupture. It upends the critical balance between political power and the judicial protection of citizens' fundamental rights and freedoms.
"The global context is currently marked by a worrying erosion of the rule of law," the Barreau stated, directly linking provincial practices to broader international concerns. Both the Canadian and Quebec charters contain notwithstanding clauses—Section 33 and Section 52, respectively—that permit governments to override most protected rights. Critics liken these provisions to an umbrella with a gaping hole, rendering their protective purpose almost useless.
The Notwithstanding Clause: A Compromise Gone Awry?
The federal notwithstanding clause was originally a constitutional compromise in 1982, intended for rare, exceptional circumstances after courts had delivered their rulings. It requires renewal every five years. In Quebec, however, its use has become symbolically tied to shielding the "Quebec nation" from Supreme Court challenges, often framed as protecting against minorities portrayed as outsiders.
"What is the point of a rights charter meant to protect minorities from potential tyranny of the majority," the article questions, "if the majority can pre-emptively bypass the courts' protection of those very rights?"
Proposals for Reform and Government Dismissal
The Barreau du Québec has proposed specific legislative reforms to curb cavalier use of the clause, though it stops short of advocating for its removal. Its recommendations include:
- Requiring the legislator to clearly justify the clause's use and outline its anticipated effects on rights.
- Structuring meaningful consultations with stakeholders.
- Establishing reasonable time for parliamentary debate without closure motions.
- Setting a decision-making threshold higher than a simple majority.
- Automatic referral to the Court of Appeal for a declaratory opinion.
In a response characterized as typical of the CAQ government, Minister Jean-François Roberge, responsible for Bill 9, dismissed the proposals. He argued they would place the government in a "straitjacket."
Historical Precedent and Future Implications
The article recalls the 1988 precedent when Premier Robert Bourassa invoked the clause to override a Supreme Court decision on language signs. The court's initial analysis had value, suggesting French predominance was a reasonable limit, but an English ban went too far. Public and international backlash later prompted a law change.
With the Supreme Court set to hear the Bill 21 case next month, the pre-emptive use of the clause may oblige the court to uphold a law it might otherwise deem discriminatory. Politically, this could avoid igniting nationalist fervor ahead of an election, but it risks aligning Quebec with regimes it traditionally criticizes.
"It is the cavalier use of the notwithstanding clause," the article concludes, "that lumps us all together—with regimes we think we're better than."
