Replica | Law 101 reform and notwithstanding clause: let’s set the record straight

In response to Vincent Brousseau-Pouliot’s editorial, “Yes to the protection of French, no to the derogation provision”, published on October 9

In a text published on October 9, Vincent Brousseau-Pouliot comments on the use of the parliamentary sovereignty provision (also called the derogatory clause) in Bill 96 aimed at strengthening Bill 101, by referring to some of my search results. He opposes this use because it would not be useful from a legal point of view, since Bill 96 complies with the charters of rights, that this provision should never be used in a preventive manner and that it should never be used in a preventive manner. would have actually been used only three times.

This bill may appear to conform to current interpretations of these charters, but there can be no guarantee that it will conform to their future interpretations. Let us remember that last spring, a judge interpreted the right of Anglophones to be educated in their language as prohibiting Quebec from imposing on teachers in English schools a rule obliging them to teach with their faces uncovered! Such an interpretation was more than unlikely at the time of adopting this rule. Only a preventive use of the parliamentary sovereignty provision could have prevented this (which was not possible in this case since this right is protected from this clause).

It is not for nothing that this provision can be used as a preventive measure, so before a decision deeming a law contrary to one of the charters. The elected officials who adopted these charters could have made this provision usable only after such a judgment. Instead, they chose to allow preventive use and this choice was confirmed by the Supreme Court.

Of the few hundred cases of use of this provision that have occurred since the adoption of these charters, only two cases have occurred after such a judgment. Preventive use is therefore the rule and not the exception.

To claim that this provision has only really been used on three occasions is a total departure from what the scientific literature shows. To arrive at this figure of three, Mr. Brousseau-Pouliot calculates as corresponding to a single use of the provision of the laws invoking this provision on several occasions and excludes from his calculation the laws invoking it when, in his opinion, this invocation no longer exists. has no real legal effect considering that these laws would be in conformity with the charters. But to demonstrate even a little this alleged lack of real legal effect, it would be necessary for it to produce as many legal opinions confirming this conformity as there have been cases of use of a provision and therefore more a hundred opinions.

However, with some exceptions, all bills adopted in Quebec are subject to a legal opinion relating to their compliance with the charters before their adoption. As more than a hundred paragraphs in various laws have invoked this provision of parliamentary sovereignty, this indicates that as many legal opinions have concluded that these laws present a risk, from very moderate to very high, of being found to be contrary to the laws. charters.

Above all, it is absurd to see Mr. Brousseau-Pouliot exclude from his calculation the cases of use of this provision in laws which, in his opinion, are in conformity with the charters, and to judge that because of this conformity , this use in these laws is not problematic, while affirming that the use of this provision in Bill 96 is problematic even if this project complies with the charters.

Finally, let’s not forget the essential. Law 101 of 1977 made French progress for a few years, then was invalidated among other things because it lacked a provision of parliamentary sovereignty, and then French began to decline again. If only for this reason, it is not possible to say yes to the protection of French, but no to this provision.

Read the editorial by Vincent Brousseau-Pouliot What do you think? Express your opinion

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