I have written on several occasions about the notwithstanding clause, that unique Canadian creation forged as a constitutional compromise to act, post judgment, as a form of “safety valve” and “balancing mechanism.”
Though its initiators never intended it to be used pre-emptively, some provincial governments have resorted to it in their legislation in recent years, thereby suppressing fundamental rights while shielding their laws from proper judicial review. Over its two mandates, the Coalition Avenir Québec government has systematically championed the use of the clause in all its flagship legislation on language, culture and secularism.
It is symptomatic that on her very first meeting with Prime Minister Mark Carney in Ottawa, immediately after becoming the head of the Quebec government, Premier Christine Fréchette brought up the notwithstanding clause as a priority item for discussion. The Canadian government should not touch the clause, she declared, for “it’s an important tool for Quebec, for our nation.”
Indeed, conscious as it has been that its priority legislation may violate both the Quebec and Canadian charters of rights and would not likely withstand judicial review, the CAQ government has found in the notwithstanding clause that magic instrument able in total impunity to deny democratic rights to its citizens.
Governments, using their dominant powers of communication, are able with strategic repetition to sway public opinion decisively. The CAQ government thus seems to have achieved the feat of convincing a major part of the electorate that the pre-emptive use of the notwithstanding clause to override charter rights is essential for the protection of the French language.
It is symptomatic that on her first meeting as Quebec premier with Prime Minister Mark Carney, Christine Fréchette brought up the notwithstanding clause as a priority item for discussion, writes Clifford Lincoln. Blair Gable / Postmedia
In other words, it is not possible for the French language and culture to coexist fully with Quebec’s own Charter of Human Rights and Freedoms. Ergo, those of us who believe the contrary must be either anglos or anti-French citizens who just don’t understand.
So stridently has this mantra become the norm of the political discourse that any reference to it attracts headlines. The new Liberal leader, Charles Milliard, has just found out how potent it can be. His comments about the possible use of the notwithstanding clause instantly became a hot topic for debate.
I found it refreshing that Minister of Justice Sean Fraser should recently refer to the notwithstanding clause as enabling laws which ‘violate or could violate the rights of Canadians.’
I have met and had discussions with Milliard on many occasions, and supported him from the early days of his initial candidacy for the leadership. I have found him intelligent, cultured, reasoned in judgment, and refreshingly open-minded. I believe he would make a successful and fair premier for all Quebecers. A nationalist in the Bourassa mould, he truly believes in a dynamic Quebec within Canada. He would introduce a breath of fresh air into Quebec politics.
I am convinced that he agrees fully that the protection of French can exist harmoniously in total respect of the Quebec charter of rights, which should have pride of place in our democratic society. I am also satisfied he would use the notwithstanding clause only as a very last resort, after due consultation with his caucus and key advisers.
French has brilliantly survived the British conquest and rule, including the unjust impositions of Lord Durham, for over two and a half centuries without the notwithstanding clause (bar its usage in recent times). The 5 million-plus Finns proudly maintain their language and culture despite aggressive Russia, a recent occupier. Vietnam and tiny Laos do so as well while adjoining the Chinese colossus. So does Nepal neighbouring an India of over 1.4 billion people, as indeed also do countless small countries fiercely proud of identity, language and culture. All of them without a notwithstanding clause.
I found it refreshing that a senior government official, federal Minister of Justice Sean Fraser, should recently refer to the notwithstanding clause as enabling laws which “violate or could violate the rights of Canadians.” It is about time, and I salute his fortitude at a juncture where it has become increasingly unpopular politically to even mention fundamental rights as a democratic core. May his voice be heard and heeded.
Clifford Lincoln resigned from the Quebec cabinet in 1988 over the use of the notwithstanding clause in Bill 178, governing the language of commercial signs. He later served as a federal MP. He lives in Baie-D’Urfé.
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