Quebec Bill 96 is an opportunity to correct two constitutional errors

This column is the opinion of Peter L. Biro, the founder of the Democracy and Civic Education Advocacy Organization, a member of the Royal Society of Arts and the Honorary Chairman of the Global Jane Goodall Institute.He is a lawyer, business executive and editor Constitutional Democracy under Pressure: The Age of Heroic Citizens. For more information CBC’s opinion section, See FAQ.

Canada is not yet in the “Night of Long Knives“November 1981, and Mitch Lake with Charlottetown Respectively in 1987 and 1992.The cause of national unity certainly promotes correcting this historical error Quebec Act 96 Language Act seek Amend the Canadian Constitution, We now have a once-in-a-lifetime opportunity to correct two constitutional errors at the same time instead of one.

We can realize Quebec’s desire for French monolingual status and its requirements for the status of “nation” in the constitution. We can cancel Article 33 of the Canadian Charter of Rights and Freedoms at the same time, which is notorious and abominable despite the clause, which was invoked by the Quebec government in Act 96 to protect it from the ensuing The inevitable constitutional challenge.

The reason for this grand event in constitutional salvation is that at least one aspect of Bill 96, the Constitutional Amendment to make French Quebec the only official language, requires the consent of the House of Commons and the Senate.

There are constitutional scholars, such as Benoit Pelletier of the University of Ottawa, debate Quebec can unilaterally make these constitutional amendments because they only affect Quebec on the surface, and they will not affect other parts of Canada.

However, others, such as Bruce Rider of Osgoode Hall School of Law, are stubborn The Constitution clearly stipulates that, in accordance with Article 43 of the Constitution, changing the status of Quebec’s French and English requires the consent of the Quebec National Assembly and Parliament. Others insist that the language amendment requires not only the support of the parliament, but also the support of seven provinces that represent at least 50% of the country’s population.

As Ryder recently Tell the Globe and Mail“This is not just a symbolic gesture. The language rights of English and French concern the entire country.”

This means that unless Bill 96 is challenged in the Supreme Court of Canada, Pelletier’s interpretation of the law will prevail. Otherwise, Quebec’s constitutional amendments will be gone without real compromise. Quebec, Canada, is likely to return. There are six other provinces.

Watch | Quebec lists new French law:

The Quebec government hopes to pass a comprehensive new bill to promote the use of French in the province, which will affect many people, including students, businesses and new immigrants. 2:04

Bill 96 is the second time that the governor of François Legault and his government has invoked the despite clause. In 2019, it passed Act No. 21, “Act to Respect National Freedom” aims to eliminate religious symbols in most public sectors.

In Act 96, Quebec is now seeking to add a clause to the Canadian Constitution, stating that Quebec is a country whose official and common language is French. The bill also made major changes to the application of its legal grammar (Act 101) and the application of a wide range of language, workplace, and education policies. In order to protect the legislation from judicial struggles over whether it undermines freedom of speech, freedom of religion, and equal rights, the Quebec government resorted to Article 33 of the Charter.

Canadian democracy has always been considered resilient and can well withstand the danger of democratic regression seen by other liberal democracies around the world. However, Article 33 of the Charter is a feature of the Canadian Constitution, which undermines this rather smug assessment and allows Parliament and the legislature to temporarily suspend the implementation of fundamental charter rights and freedoms.

Whether our leaders are willing to invoke the albeit clause has aroused concern in liberal constitutional democracies.

Although reliance on Article 33 does not violate the rule of law, it poisons the wells of freedom and democracy for free citizens to draw water. It undermines the elegant and well-designed accountability system stipulated in Section 1 of the Charter, which stipulates the restrictions on rights and freedoms of the Parliament and the provinces, but for Section 33, these rights and freedoms are protected and guaranteed.

In other words, the constitution already provides a mechanism under which the government can justify the restriction in a way that is consistent with the overall respect for freedom and democracy, and can restrict rights and freedoms. In a truly free and democratic society, we do not require and should not tolerate the use or existence of Article 33, which does not require the government to invoke provable reasons for its application.

The despite clause should be repealed.

It was the current Prime Minister of Canada—it was the prime minister’s son who reluctantly accepted the inclusion of Article 33 in the charter in 1981 as the cost of the provincial approval of the entire repatriation plan—he should submit the proposal to the Canadian government. Table as a condition for Canada’s consent to the constitutional amendment sought in Act 96.

However, to date, Justin Trudeau has recklessly participated Uncritical cheerleaders For Quebec law.

Watch: Prime Minister Justin Trudeau responds to questions about Québec’s rewrite of the constitution:

Prime Minister Justin Trudeau speaks with reporters at the regular pandemic briefing on Tuesday. 1:25

Speaking on behalf of Canada, the Prime Minister should call on the Governor Legault to amend Act No. 96 to remove its reliance on the provisions of the despite clause, and insist that any part of Act No. 96 will not pass the Article 1 test in any future court challenges. Modify accordingly or give up completely.

This, and Quebec’s agreement to completely repeal Article 33, should be the price of Canada’s sincere support for Act 96.

This will not necessarily undermine or frustrate Quebec’s extensive legislative projects that serve its national, cultural and linguistic aspirations. Some legal experts, including Benoit Pelletier, believe that any specific measure in the law does not require the protection of Article 33 in order to survive the constitutional challenge. However, even if the Supreme Court does abolish part of the law in accordance with Section 1, there are good reasons to believe that only moderate adjustments can bring the law into a good position in the constitution without violence against the broad purpose of the initiative. In particular If Canada supports the revised Act No. 96, the premise of the Act is to reach a consensus that the language and national status provisions have survival significance for Quebec’s cultural identity and desires.

Next, the Prime Minister should develop a two-pronged strategy aimed at generating broad public consensus on the plan in Canada. A strategy that could lead to a national referendum on the repeal of Article 33, and a simultaneous strategy that won the support of the governor, eventually led to the first minister’s constitutional convention on the entire amendment.

Yes, Quebec, there is no doubt that some other provincial capitals oppose the proposal to repeal Article 33; but the Canadian government has certain bargaining power in this regard. Regardless of whether there are other provinces, Canada can oppose Quebec’s unilateral efforts to amend the constitution.

The repeal of Article 33 certainly requires the consent of two-thirds of the provinces representing at least 50% of the population of the country. After Charlottetown, a consultative referendum may have to be held before the amendment is submitted to the provincial legislature. But this is a nation-building thing!

Therefore, Prime Minister Trudeau can express broad support for Quebec’s national and language aspirations, and at the same time initiate the amendment process on Article 33 as part of the effort to update and strengthen the Federation.

Quebec needs to join the constitutional family with dignity—that is, in its own way. But, as the Prime Minister should argue, these provisions never have to depend on resorting to constitutional means that would deprive its citizens of the protections provided by the Charter, thereby making Quebec a non-liberal democracy in Canada.

Sadly, by eager to show his support for Bill 96 in its current form, without any conditions or conditions, the prime minister has already conflicted his party’s upcoming election in Quebec with Canada’s national interests. It is not too late to change direction. If he has the courage and determination to lead the country in efforts to strengthen, rather than betray, our freedom, constitutionalism and democracy, he can do both.

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