In Legault’s Quebec, the use of the notwithstanding clause is an act of affirmation

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Let’s just say Prime Minister Justin Trudeau might have had a far different reaction to Quebec’s latest proposals to protect the French language had he not been at the head of a minority federal government that sees picking up seats in Quebec as the key to winning a majority.

Mr. Trudeau barely batted an eye at Premier François Legault’s move last week to pre-emptively invoke the notwithstanding clause to shield Bill 96 from a Charter of Rights and Freedom challenge. And on Tuesday, the Prime Minister said he considers it “perfectly legitimate” for Quebec to unilaterally amend a section of the Canadian Constitution that applies only to the province to insert a recognition of its “nation” status and of French as its sole official language.

To provoke Quebec now as his father might have would not win Mr. Trudeau any new voters in English Canada but would put him on a politically fraught collision course with Mr. Legault on the eve of a federal election. Not going to happen.

Besides, Mr. Legault’s decision to invoke the notwithstanding clause struck many constitutional experts as overkill, since none of the proposed language measures appear to contravene the Charter. Access to English-language junior colleges will remain guaranteed for anglophones. Currently bilingual municipalities will be able to retain that status even if anglophones make up a minority of their residents. Some retailers with English names, such as Canadian Tire, will be required to tweak their signage to give more prominence to French. But bilingual signs will still be permitted.

By invoking the notwithstanding clause, rather, Mr. Legault is seeking to make the same point that he did when he chose to use the Charter override to protect Bill 21, the 2019 law that forbids some public employees from wearing religious symbols on the job. The point – which is aimed as much at Quebeckers themselves as at the rest of Canada – is that Quebec considers itself sovereign in matters affecting its language, culture and values, and no Canadian court is going to tell it otherwise.

Indeed, invoking the notwithstanding clause is meant to be seen as an act of national affirmation and Mr. Legault has practically worn its use as a badge of honour. There is some irony to this, of course, since Quebec had almost nothing to do with the inclusion of the notwithstanding clause in the Constitution in the first place.

The story of how Canada ended up with a Charter of Rights that explicitly allows the legislature of any province to override individual rights has become something of an urban myth. But the historical record is clear: The demand for the notwithstanding clause came from Western premiers who feared an all-powerful judiciary.

In 1980, at a first ministers’ conference held to discuss prime minister Pierre Trudeau’s plan to patriate the constitution from Britain, Alberta premier Peter Lougheed called for the inclusion of the notwithstanding clause in the Charter Mr. Trudeau then proposed to include in a Made-in-Canada constitution. Without such a clause, Mr. Lougheed, Manitoba premier Sterling Lyon and Saskatchewan premier Allan Blakeney would not have supported the Charter’s adoption.

“The notwithstanding clause reflects a balance between two competing interpretations of our democratic system,” Mr. Lougheed later wrote of his proposal. “Canada has an historic tradition of parliamentary supremacy. … While the Charter raises to an unprecedented level the protection of rights and freedoms afforded to Canadians, it is acknowledged that democratic society sometimes requires the abrogation of these rights for important reasons.”

Quebec premier René Lévesque was not even in the loop when Mr. Trudeau’s justice minister, Jean Chrétien, reached a patriation deal with the other premiers on the sidelines of a 1981 first ministers’ conference. Mr. Trudeau got his Charter and the Western premiers got their notwithstanding clause. Quebec, which unsuccessfully sought a veto over constitutional amendments, withheld its support for patriation.

The notwithstanding clause soon came to be seen as taboo everywhere in Canada except Quebec. Ontario Premier Doug Ford threatened to invoke the clause if courts struck down legislation to slash the size of Toronto City Council in 2018. But he never had to go through with it and would likely have faced a public outcry if he had.

In French Quebec, however, it is an article of faith that individual rights do not always trump collective rights. The COVID-19 pandemic made this clear across Canada as governments suspended fundamental rights of free assembly and mobility. But what seemed like a revelation to many in the rest of Canada – that individual rights are not absolute – has long been the accepted wisdom in Quebec.

In Quebec, collective rights have always been a thing. Sooner or later, the rest of Canada needs to get used to that.

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