In a text published on June 18, André Pratte responds to Antoine Robitaille and defends the idea that it would be extremely serious to give elected officials from Quebec rather than federally appointed judges the final say on fundamental rights matters. In this regard, Mr. Pratte makes several claims that deserve answers.
• Also read: André Pratte answers Antoine Robitaille: This is not a film
Mr. Pratte alleges that the Legault government applied the so-called derogation provision of the Canadian Charter and the Quebec Charter, while the Lévesque government systematically applied only that of the Canadian Charter between 1982 and 1985. This is correct, but ignores the fact that the Supreme Court had not then so drastically applied its interpretations of the Canadian Charter to the Quebec Charter without considering the latter’s specificities. Since then it has been clear that the interpretations of the first presuppose those of the second and that consequently the application of the provision of the Quebec Charter must go hand in hand with that of the Canadian Charter.
Mr Pratte then claims that the courts and not parliamentarians should have the final say on fundamental rights issues because “in Parliament the majority holds power, while charters aim to protect the rights of minorities”. This argument is special when you consider that the courts also decide by majority. Namely, if five Supreme Court justices rule in one direction while the other four rule in the opposite direction, only the opinion of the five majority judges is binding and binds the other courts. And the composition of the Supreme Court is such that ordinary lawyers from other provinces, generally Anglophones or Anglophiles, are in the majority, and Quebec jurists, trained in the tradition of civil law and generally more Francophone or Francophile, in a strong minority are. . Claiming that the charters aim to protect the rights of minorities is inaccurate as they aim more to protect the rights of all citizens. Of course, they can pay special attention to minorities. However, they must do this to all minorities, including Canada’s French-speaking minority, who form the majority in Quebec.
Unfortunately, the jurisprudence of Canadian courts in relation to the Canadian Charter has often shown very little respect for the rights of this minority, hence the need to give Quebec elected officials, rather than federally appointed judges, the final say in legal matters. In the past, the idea has been to amend Canada’s Constitution, with the approval of the federal government and other provinces, to change Canadian law toward greater autonomy, allowing Quebec to promote its language and culture. Failing that, Quebec is now supposed to act unilaterally to achieve that outcome, for example by amending the constitution itself or invoking provisions of parliamentary sovereignty. We can be for or against this idea, but to say that it would be dangerous is clearly an exaggeration and reflects a lack of trust in Quebec lawmakers and the Quebecers who elect them.
Guillaume Rousseau, law professor