André Pratte: Legault picks fight with Ottawa to divert attention from his own rights trampling

Quebec Premier François Legault wasted no time reacting to Justin Trudeau’s statement that his government was considering referring the use of the notwithstanding clause by some provinces to the Supreme Court, accusing the prime minister in a series of tweets of leading a “frontal attack” on Quebec. The premier’s reaction was predictable — blaming Ottawa is so much easier than justifying his government’s egregious disregard for Quebecers’ human rights.

Like the Canadian Charter of Rights and Freedoms, the Quebec Charter of Human Rights and Freedoms contains a notwithstanding clause, which allows the province’s national assembly to adopt an act that expressly derogates from the rights protected by it.

In bills 21 (religious symbols) and 96 (language), Legault’s government included a preventive and wide-ranging reference to both notwithstanding clauses. When confronted with this fact, the premier and his supporters like to remind the public that the Canadian charter is part of the Constitution Act, 1982, “which Quebec never signed.” Legault finds it convenient not to mention the purely Québécois charter, which was adopted unanimously by the national assembly in 1975.

Bills 21 and 96 state that they apply “despite sections 1 to 38 of the Charter of human rights and freedoms.” Imagine that: 38 sections of the Quebec charter, which protect most human rights, are simply shoved aside! Few Quebecers know this, because thanks to the government’s strategy, and that of its many supporters in the media, the focus has been on the Canadian charter.

Legault’s final tweet contains a veiled threat: “Quebec will never accept such a weakening of its rights. Never!” What does this mean, exactly? What will the premier do if the Supreme Court holds that the preventive use of the notwithstanding clause is unconstitutional?

Sovereigntist commentators have already concluded that the only way out is for Quebec to separate, and are pressing Legault to move in that direction. “Does Legault not see the limit of his acceptance of the Canadian framework? Does he remember that he was once an independentist?” wrote prominent columnist Mathieu Bock-Côté.

I may be wrong — I have often been in the past — but my sense is that Quebecers will not come to the same conclusion. Yes, a vast majority of Quebecers are frustrated by the fact that the 1982 constitutional agreement was adopted without their province’s support. Yet surveys have shown that most of them appreciate the charter. They may be overwhelmingly in favour of bills 21 and 96, but this does not mean that they specifically agree with the suspension of their fundamental rights.

At this early stage of the debate, Legault’s indignant tweets appear to have fallen on deaf ears. Many Quebecers understand that the prime minister has a duty to defend the Constitution; they may not applaud his actions, but they are not surprised.

It remains to be seen how Quebecers will react if the Supreme Court determines that bills 21 and 96 are unconstitutional. We may witness the kind of public outcry that followed the failure of the Meech Lake Accord. However, another scenario is possible. Two decades ago, the formidable Lucien Bouchard, then premier of Quebec, attempted to arouse his fellow citizens’ anger over the Clarity Act, to stoke separatist sentiments. He largely failed.

The nationalist argument in favour of resorting to the notwithstanding clause is that, in the case of a fragile minority — French-speaking Quebecers — collective rights should prevail over individual rights. This flies in the face of the very purpose of a charter of rights, which is to protect minorities against the tyranny of the majority.

Intellectuals like Bock-Côté bemoan the “government of judges,” especially when the justices in question are appointed by Ottawa. Nonetheless, polls show that Quebecers still trust judges a lot more than they do politicians.

It is interesting to note that at the time of the Quebec charter’s adoption by Robert Bourassa’s Liberal government, the Parti Québécois was opposed to the notwithstanding clause. This clause, said the PQ’s spokesperson, law Prof. Jacques-Yvan Morin, reflects “a narrow conception of the British principle of parliamentary sovereignty.”

It’s true, as Premier Legault never fails to mention, that both charters’ notwithstanding clauses have been used repeatedly by governments of all political stripes in Quebec, though this is hardly cause for celebration. Also, the cases are relatively rare where the legislation has pushed aside all relevant sections of the Quebec charter.

This is why Legault and his allies insist on playing up the federal government’s so-called frontal attack against Quebec. This allows them to divert people’s attention from the fact that their own provincial government is ignoring their rights.

National Post

André Pratte is a communications consultant and a senior fellow at the University of Ottawa’s Graduate School of Public and International Affairs.

1. Opinion: Doug Ford's use of the notwithstanding clause stands up for democracy

2. Aaron Wudrick: Notwithstanding clause protects democracy from court-invented rights