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Lesson #56: The Marois Charter vs. the Courts

The “Charter of values” and the Courts

Two days ago, Sunday, I wrote about the so-called values charter in the context of the Marois government’s never-ending drive for Quebec sovereignty. If our Premier is as politically on the ball as she appears to be, she must realize that the goal of Quebec independence is far in the future if it is to occur at all. So what she is doing now is taking small steps towards that goal. She is operating dialectically* taking the long view of history. She must hope that Quebec separates from the rest of Canada and becomes a sovereign country while she is Premier at some future point in time. Failing that she would like to see sovereignty achieved during her lifetime; and if that scenario does not happen, she still must anticipate that Quebec will indeed become it’s own country after she passes on and in that context, she is now working to secure her place in the history books. The tabling of the Quebec Charter of Values** – Bill 60 – will ensure that history views the present Marois administration in a positive light as far as the promotion of the separatist cause is concerned. If Bill 60 provokes a fight with Ottawa then so much the better. (See below)

In that context, Marois must perceive herself as laying the groundwork for a third referendum far into the future unless something untoward occurs more recently than that and which provokes Québécois so much that they give the PQ, either under Marois or her successor – whoever that will be – a majority government that can do basically what it wants unlike Marois’ present minority government with a plurality of only fifty-four of the 125 seats in our Quebec National Assembly.

It is as a result of the latter circumstance that Marois was forced to shelve Bill 14 which would have, among other things, forced businesses with twenty-six employees or more to guarantee the primacy of French in their working environment as well as tightening up the rules for the creation and/or maintenance of bilingual status for municipalities. Further, this Bill, which is being allowed to die on the order paper, would have applied Bill 101 to military families meaning that children of a parent or parents in the military would lose their automatic right to an English language education, in addition to forcing English language CEGEP’s to show preference for applications from Anglophone students over those from either Francophone or Allophone backgrounds.

The fact that the PQ has a plurality***and not a majority of National Assembly seats has also caused the Marois government to sort of give up on the passage of the charter during its present mandate which could but probably won’t end in 2016. Guaranteed that as soon as the PQ smells blood, it will resign allowing the calling of new elections in the hope of being able to finally form a majority government. That would permit the government to do pretty much what it pleased as long as it didn’t try to get laws through that the courts would declare to be unconstitutional.

Thank God we live in a democracy which is characterized – as democracies always are and must be – by a separation of powers among the three branches of government: the legislative branch which makes and passes laws, the executive which proposes and administers them and the judicial branch whose job it is to interpret legislation to ensure that it is constitutional, legal in other words.

Suppose a majority government in any democratic country passes a law banning the wearing of what are called ostentatious religious symbols by public sector workers (i.e. government employees) and parapublic sector workers (doctors, nurses, teacher, daycare workers and others whose wages and salaries are indirectly paid by the government). Upon a challenge in court, the justices would have to deliberate and decide on whether such a law is constitutional or if, on the other hand, that particular statute contradicts our constitutional right of religious freedom. If the courts decide that this law does fly in the face of freedom of religion then that law would be declared as unconstitutional and therefore be disallowed, vetoed by the courts if you will.

It can be seen how important the separation of powers is. It is this component of our government structure which prevents any administration from running roughshod over the constitutional rights of its citizens and the court system, by performing this role, also inhibits the development of dictatorial tendencies on the part of any freely elected government.

It is significant to note at this point that the federal Charter of a Rights and Freedoms is enshrined in our constitution which means that more than a majority in the Commons is required to change or revise this cornerstone of our democratic freedoms (previously our Bill of Rights with certain additions). In fact, a vote by two-thirds of M.P’s is necessary to amend our constitution, the Canada Act of 1982. But that’s not the end of this sequence of events, not by a long shot when we are discussing constitutional amendments. For following getting the support of two-thirds of our elected members as well as – and I shudder to say it at this point in our political history – the Senate, any proposed constitutional change must further garner the endorsement of seven provinces which contain at least seventy percent of the country’s population.

Picture the following scenario: a PQ majority government passes the charter only to have the Canadian Supreme Court declare it to be unconstitutional and therefore throw it out. This would present quite an opportunity for that PQ government to accuse our central government of meddling in the affairs of Quebec. This could provide more ammunition for the Oui side in a referendum campaign which would be bound to follow at some time in the future. For quarrels with Ottawa is one of the so-called separatist “winning conditions”. Piss the independantistes off and see what happens to you.

It’s complicated.

Peace out

*See also JuicyLesson #5 which explains what the dialectic is and how it works in general terms. JuicyLesson #7 deals with the dialectical process in Quebec history and politics.

**The Charter of Values (Bill 60) was tabled under the following twenty-eight word name: Charter Affirming The Values Of Secularism And The Religious Neutrality Of The State, As Well As The Equality Of Men And Women, And The Framing Of Accommodation Requests. (28 words)

***See the JuicyLessonperday from two days ago (#54) for definitions and implications of minority governments who hold a plurality of seats as opposed to majority governments who have at the very least fifty percent plus one of the total seats in any legislative body.

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