Mr. Speaker, for as far back as we can remember, Quebec has wanted freedom, the power to express its distinctiveness and the ability to make its own choices.

This desire for freedom and democracy was behind the Patriotes movement in the 1830s and the Quiet Revolution in the 1960s. It is this desire for freedom and democracy that motivated the significant reforms made by René Lévesque's government starting in 1976, and more recently, Bill 21, concerning secularism, and Bill 96, which strengthens the protection of our French language.

Quebec is a people, a language, a territory with its own character and a nation with its own values.

Some, including me, feel that the only way for us to be free is to have our own country, an independent francophone state in North America that would give Quebeckers full powers to govern their destiny. Quebec would be free to negotiate the treaties it signs with other countries, free to democratically determine the way it develops and free to protect its language and support its economy.

However, for others, Quebec should be able to adapt in order to grow within Canada. In their view, there would be enough room for Quebec's distinctiveness within the rest of Canada. For these people, the notwithstanding clause is precisely proof that Canada occasionally allows Quebec to assert its distinctive nature. The notwithstanding clause is part of the Constitution, which allows a province, as well as the federal government, to pass a law without having it be reviewed by a judge. It is also called the parliamentary sovereignty clause, because it allows a legislature to vote democratically on a law that will not be subsequently overturned or struck down by judges.

This clause is limited. It only allows for exceptions to certain individual rights in the Canadian Charter of Rights and Freedoms, and it is only valid for five years at a time. The Quebec government invoked the parliamentary sovereignty clause to protect the law on state secularism from any challenge. Since 1982, Quebec has used this clause on numerous occasions to protect laws passed by the Quebec National Assembly. It has used it to protect the French language and Quebec's national identity, but, more generally, Quebec has also used this clause to promote collective rights and social goals. For example, it has done so to provide benefits to the next generation of farmers, to promote the employment by the government of people from under-represented communities, to improve access to justice with the small claims court and to protect the identity of young people in youth court.

All these social advances, which Quebec wanted, were unable to be put forward because of individual rights enshrined in the Canadian Charter of Rights and Freedoms. Thus, the parliamentary sovereignty clause is a small window of freedom through which Quebec democracy can express itself. It is a way of resisting the uniformity imposed by the Canadian courts.

For René Lévesque, who suffered the night of the long knives when the patriation of the Constitution was negotiated, this clause was not enough. That is why Quebec, even though it is subject to it, never signed on to the 1982 Constitution. However, for several Canadian provinces, this was the compromise that made the Constitution acceptable.

Today, this Liberal government wants to shrink this small space of democratic freedom. It has asked the Supreme Court to limit how the parliamentary sovereignty clause can be used. Since it is not courageous enough to propose negotiating with the provinces, it is asking the judges to do its job. It argues that, without new limits, Quebec could commit dangerous abuses. This is an extremely condescending view of Quebec, and it is really nothing new.

It targets Quebecers because, if the Liberal government were truly concerned about the overriding of fundamental rights, it would start by cleaning up its own laws. It must be said that most bills of rights contain a notwithstanding clause. Quebec's has one, Alberta's has one, Saskatchewan's has one. Even the Canadian Bill of Rights contains a notwithstanding clause. It is a bill that applies to areas of federal jurisdiction. It was adopted in 1960 under the leadership of Mr. Diefenbaker, and section 2 contains a notwithstanding clause. If the federal government were so concerned about the possibility of this clause being used, it could have started by amending this law itself in the House of Commons.

However, what worries the government is not so much notwithstanding clauses in general, but rather the possibility that Quebec may express its difference. That is why the government only wants to define the parliamentary sovereignty clause that applies to Quebec.

To fully understand what is happening, let us take a step back. On November 20, 1981, during the debates surrounding the adoption of the parliamentary sovereignty clause, the Liberal Minister of Justice at the time, Jean Chrétien, addressed the House:

The purpose of an override clause is to provide the flexibility that is required to ensure that legislatures rather than judges have the final say on important matters of public policy...

It is because of the history of the use of the override clause and because of the need for a safety valve to correct absurd situations without going through the difficulty of obtaining constitutional amendments that three leading civil libertarians have welcomed its inclusion in the Charter of Rights and Freedoms.

[...]

It should be clear, in conclusion, that the compromise reached by the Prime Minister with the nine Premiers [Quebec never signed on] maintains the principle of a full, complete and effective constitutional Charter of Rights and Freedoms. It does not exclude rights which have previously been guaranteed. In fact, the charter has been improved because unforeseen situations will be able to be corrected without the need to seek constitutional amendment. For those who remain concerned about the override clause, let me remind them that it has been said that “The price of liberty is eternal vigilance”.

In this last sentence, Mr. Chrétien could have been speaking to those who are now members of the Liberal government.

Forty years later, the former prime minister still had not changed his mind. On April 19, 2017, he told the CBC that he was in favour of the notwithstanding clause because he believed that we need it and that we could not rely solely on the courts. He said that this was the reason why he was happy that we had a notwithstanding clause. In his view, judges know, when they make their rulings, that governments may object to them.

There is more. I will now quote Pierre Elliott Trudeau, who was also quite satisfied with the notwithstanding clause:

I must be honest and say that I don't fear the notwithstanding clause very much. It can be abused as anything can, but the history of the Canadian Bill of Rights Diefenbaker had adopted in 1960, it has a notwithstanding clause and it hasn't caused any great scandal. So I don't think the notwithstanding clause deters very significantly from the excellence of the Charter.

He went on to say that:

[I]t is a way that the legislatures, federal and provincial, have of ensuring that the last word is held by the elected representatives of the people rather than by the courts.

When former prime ministers Pierre Elliot Trudeau and Jean Chrétien are being quoted to defend provincial autonomy, things are not going well. That is because Ottawa's appetite for centralization is stronger than ever before these days.

We need to take stock of what is happening right now. This provision, which was not enough to convince Quebec to sign the 1982 Constitution, is now too important for Ottawa to tolerate. This space of democratic freedom for Quebec is now treated like a historic mistake that the federal government wants to correct.

The more time passes, the more the federal government wants to shackle Quebec. This shows the real state of affairs. Canada is working against Quebec's distinctiveness. It will always push further and further. It will never stop. However, Quebec is a people, a language and a territory with its own colours. It is a nation with its own values, and one day, I am certain, a majority of Quebeckers will agree that the only way to achieve true freedom is to be our own country.

Alexis Deschênes

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