40 years later, they attack the constitution

Is the constitution of Canada constitutional?

I agree, the question sounds weird. I hear you laughing: “It’s like wondering if the water is wet! »

But in our Dominion, it arises seriously. At least according to constitutional law professor Daniel Turp and historian Frédéric Bastien.

They filed yesterday in the superior court, with the lawyer François Bouliane, a request to have the constitutional law of 1982 declared “null, invalid and inapplicable”.

Repatriation

Soon 40 years ago (April 17, 1982), in Ottawa, Elizabeth II, under the gaze of Pierre Elliott Trudeau and Jean Chrétien, signed the proclamation of the new constitution.

This concludes the so-called “repatriation” episode. The law of the laws of Canada ceased to be a document emanating from the Parliament of Westminster.

It was neither more nor less than a refoundation of Canada. Prime Minister of Quebec at the time, René Lévesque denounced a legal “coup d’etat”.

Subsequently, the Mulroneys, Bourassas, etc. tried to repair what they called a “coup de force” (with the “defunct agreements” of Meech and Charlottetown).

In 1982, when repatriating the constitution, since there were no rules for changing the “constitution”, an “amending formula” was added to it. In addition, a Charter of Rights was introduced. This revolutionized Canadian law.

The problem: all of this was done without the (political) consent of Quebec. Hence the phrase “Quebec has not signed the constitution”. Each year, the National Assembly recalls, with a resolution supported by all parties, that there is a problem. In his book I trust (Quebec/America, 2018), the current CAQ Minister of Justice, Simon Jolin-Barrette, speaks of a “betrayal”.

It applies

Legally, however, the repatriated constitution applies to Quebec.

Ten days before the April 17, 1982 proclamation, the Quebec government argued in court that the repatriation was illegal; Quebec had a “right of veto”. The judges refused.

Forty years later, Bastien, Turp and Bouliane resume the fight.

In their extensive request, they claim to have new arguments. Taking advantage of Bastien’s discoveries in the British archives (recorded in the book The Battle of London), they claim that the principle of judicial independence has been violated, judges having considered repatriation having also had discussions with members of the government.

Other arguments: prior to 1982, all changes to the Dominion constitution were made with the prior agreement of all the provinces; repatriation violates the rule that Quebec’s exclusive powers over “property and civil law” cannot be changed; the repatriation violated the right of the Quebec people to self-determination.

Enlightening, the gesture is no less quixotic, because doomed to failure. Despite the strength of the legal arguments, will the court really dare to declare the “constitution unconstitutional”?

The legal vacuum created would be abysmal and would relaunch the constitutional debate, practically abandoned since 1995. One can even fear that in the end, the judges will give, in their judgment, legitimacy to 1982.

Do you have information for our columnist? write to antoine.robitaille@quebecormedia.com

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