The Notwithstanding Clause from Bourassa to Legault


Francois Legault, full of confidence with the surprising scale of his CAQ electoral victory, is currently threatening to make use of the Notwithstanding Clause to insulate his proposed immigration restrictions from court challenges. He may go through with it even in the face of substantial public opposition, particularly in Montreal. But if he does, I hope that the public debate will distinguish between arguments about the substance of his proposals from arguments about the ‘legitimacy’ of the Clause itself. It was introduced in the constitutional negotiations of 1982 as a quite defensible compromise feature of the Charter, both to avoid the kind of juridical absolutism that has caused so much grief in the United States, and to preserve the democratic powers of the provinces from oppressive federal centralization.

Even if one intensely dislikes some specific application of the Clause, that does not demonstrate that Canada would be better off if it could somehow be rescinded, unlikely in any case. Individual citizens or groups of citizens in functioning democracies may quite often find themselves disliking particular laws introduced by elected governments. including ones that they voted for. But that dislike is not alone justification for unlimited opposition, to the point of disobeying such laws. Both in the past and at present, this ordinary requirement can be obscured by deafening cries about ‘rights’, a word with unlimited possibilities for producing insoluble conflicts between clashing interests. It makes more sense to concentrate public support or opposition on the substance of the policies that appear to require the use of the Clause.

That was certainly a large part of the story, thirty years ago this December, when the Supreme Court of Canada upheld a position already taken by the Quebec Superior Court, on a case brought by five Montreal merchants (Brown’s Shoes and four others) fighting the unilingual sign provisions of Bill 101. Premier Robert Bourassa, quailing before an immediate mass nationalist demonstration of over 15,000 people in the streets of Montreal in support of Bill 101, at once invoked the Notwithstanding Clause to impose Bill 178, maintaining unilingual signs. But it was not this action that really explained the anglo rebellion, and the election of four Equality Party Members to the Quebec Legislature nine months later, in September of 1989.

I was one of the four, and I ran as a small-c conservative, with other reasons for doing so, only objecting to what I thought was an abuse of the Clause, a position also held by many people who supported me. It was not the crucial event that galvanized me and many other people to angry opposition to the Bourassa Liberal government, including from longtime Liberal voters. It was just the proverbial last straw, and it is worth recalling why it had that distinction.

The emotional political nationalism of the 1960-1980 appeared to be subsiding rapidly after the failure of the ‘Oui’ side in the 1980 Referendum, and the PQ in the early 1980s was visibly splitting, and losing overall public support. It appeared conceivable that Bill 101, if too popular to be completely rescinded, could at least be greatly reduced in scope by a new Liberal government. When Canadians voted in Brian Mulroney’s federal Conservatives with a huge majority in 1984, I think that few of them, even inside Quebec, fully grasped what Mulroney had meant when he promised ‘provincial reconciliation’, imagining no more than an end to Pierre Trudeau’s combative and sometimes contemptuous treatment of the premiers in general. But it was soon evident that Mulroney was bent on another round of grand constitutional negotiations, concluding in the proposed 1987 Meech Lake Accord. The ‘distinct society’ provision of the latter, not as a description of the French Canadians, but of Quebec as a whole, looked to many Quebec anglos like a further step in entrenching the devastation visited on them, and on Montreal, by the double blows of Bourassa’s Bill 22 of 1974, and the PQ’s Bill 101 of two years later, for which Bourassa had prepared the ground.

The anglos, still angry about Bill 22, nonetheless somewhat apprehensively supported Bourassa in the election at the end of 1984 that returned him to power for the decade that followed. With the PQ in disarray, Bourassa promised the anglos that he would restore bilingual signs. However, he did not do so. On the one hand, anglos could take some consolation that the Canadian Supreme Court had ruled in 1979 that some parts of Bill 101 were unconstitutional, that English and French had to be given equal weight in the Quebec Legislature and the law courts, and in 1984 that the children of parents educated in English could also be educated in English. On the other, these decisions continued to arouse loud nationalist opposition.

Bourassa didn’t stop at breaking his electoral promise. He tried to maintain his own nationalist credentials in repeatedly upholding various petty implications of Bill 101, and eventually took a step that had no legislative significance at all, but which I and many other older Canadians will never forget, as one of the most appalling displays of fatuous and xenophobic political power ever seen in this country. In March of 1988, the federal Official Languages Commissioner, D’Iberville Fortier, declared that Quebec anglos were ‘humiliated’ by what they had been experiencing for the whole previous decade. Maybe not the ideal word – ‘enraged’ would be more like it – but close enough to be a justified observation. The PQ opposition immediately introduced a preposterous resolution declaring that anglos were not humiliated. Bourassa’s response was not only to affirm this bizarre resolution, but even to strengthen its language, and even worse, to compel the anglo Liberal Members to stand up and vote for the resolution.

That was what launched a rebellion of disgust from anglo Quebec, of unparalleled intensity throughout the rest of 1988. It was the reason I began speaking on public platforms in opposition to the Liberal government, later accepting an invitation from Robert Libman to run for the Equality Party, eventually running successfully in the West Island Jacques Cartier riding. Like a lot of other Quebec anglos, I was furious about the Legislature’s unanimous ‘not humiliated’ spectacle, like something out of a fascist or Communist dictatorship, and all of us began our rebellion with no idea when the Supreme Court would make another ruling on Bill 101, or how Bourassa would respond. Hence I ran deploring his action as an abuse of the Clause, not in opposition to it as a component of the Canadian Constitution, and I heard no disagreements from voters about that, when I went door to door or spoke at public meetings. Also, Bourassa won few admirers in any quarter when he argued, in the election campaign, that he might not have needed to use the Clause if Meech Lake had already been in place.

‘The last straw’ aspect of Bourassa’s use of the Clause was probably crucial in making our Equality Party electoral success possible. It guaranteed that Trudeauphile supporters of the federal Liberals, and anti-Meech Lake previous federal Conservatives could unite in support for us, and we hauled along some voters normally more fond of the NDP or Greens as well. But I doubt that our protest could have achieved so much steam so rapidly, had it not been for that revolting display in the Legislature in the spring of 1988. There is a lesson in that for Francois Legault today. If he is really determined to restrict immigration, he needs to provide some kind of persuasive case, one gaining at least partial acceptance from non-francophones and from Montreal. Otherwise, he will most resemble Bourassa in reviving a government doomed to constant exhausting and largely futile conflict.

(Neil Cameron is a Montreal historian and Discourse Online contributor. The above essay was first published by the Prince Arthur Herald.)