"There are still some blunt tools left in the B.N.A. Act: disallowance, taxation--all modes of taxation; the declarative clause; expropriation for federal purposes, and so on."
Appearing before Canada's Senate on March 30, 1988 -- four years after his retirement from public office -- Pierre Trudeau addressed his concerns over the Meech Lake Accord's distinct society clause. What options, Trudeau pondered, will be available to a future federal government so that it could respond to the dangers he believed the clause presented to individual rights and freedoms?
Fortunately, the question became moot as the Accord failed and the Quebec government -- for whose "benefit" the distinct society clause was meant -- has not been able to resort to the clause in order to bend and violate Charter rights and freedoms.
Twenty-six years later, the future is now...and the time is fast approaching when Canada's current Prime Minister may find himself in the position Trudeau envisioned -- one in which he will have to consider using Trudeau's "blunt tools" to prevent a distinct society-like piece of provincial legislation from violating the rights of today's minorities.
Bill 14
The government of Quebec is attempting yet again to further its agenda of imposing the supremacy of one language group above human rights: Bill 14, currently in committee hearings at Quebec's National Assembly, is on its way to becoming law.
An Act to amend the Charter of the French language, the Charter of human rights and freedoms and other legislative provisions, Bill 14 touches almost every aspect of Quebec life: schools, municipalities, the language of work, the services sector, the powers of inspection by Quebec's notorious "language police," and, perhaps most frighteningly, Quebec's own Charter of Human Rights and Freedoms. In its attempt to "establish the primacy of French in a way that will reduce the presence of English in every walk of public and private life," Bill 14 is, in the words of the National Post's Barbara Kay, "a pathological attack on the sin of speaking English." Frequent Huffington Post contributor and former justice minister Irwin Cotler claims that Bill 14 "renders Quebec's Charter [of Human Rights and Freedoms] a document designed to entrench the supremacy of the majority, whereas a primary purpose of constitutions is to establish individual and minority rights that cannot be suppressed by simple majority rule."
Disallowance
The British North America Act (B.N.A. Act) was Canada's first constitution, created in 1867. Much of the document delineates the powers to be shared between the federal and provincial legislatures.
One power held by the federal government that makes up part of what is informally known as the "veto" power, as defined by the Fathers of Confederation, is disallowance, which enables the federal government to render null and void, through the Governor-General's office, any provincial legislation for a period of one year. Although technically a representative of the Queen, the Governor-General is a creature of and beholden to the Prime Minister of Canada (at least as far as provincial legislation is concerned) and is expected to act upon his behest. Indeed, section 4(c) of the federal Department of Justice Act requires the Governor-General to "advise on the legislative Acts and proceedings of each of the legislatures of the provinces" and report on such to the Prime Minister.
Canada's provinces didn't exist prior to Confederation. Part of the Confederation "deal" was that if the newly formed provincial legislatures, such as Quebec's, were to use their majority advantage to violate the rights and freedoms of individuals or provincial minority communities, the federal government would step in and protect them by virtue of its veto power.
The sad truth is that this power has never been used by Ottawa to protect Quebec's minority non-francophone population, or francophone minorities in other provinces, when their rights were violated. One wonders whether we would have experienced any unity crises had the federal government fulfilled its obligations in this area from the very beginning of Confederation.
The opportunity to correct this mistake may present itself yet again. We have yet to see the final version of Bill 14 but indications are that it will pass with enough of its most pernicious provisions intact.
Citizen committees are now being formed to lobby and petition the Prime Minister to disallow Bill 14. A Quebec resident, Irwin Rapoport, who presented his brief to the Bill 14 committee hearings and bravely stared down unsympathetic MNAs from the Liberals, CAQ, and PQ, has formed one such committee on Facebook. I encourage all concerned Canadians to visit his Facebook page and lend him support in his endeavours.
Stephen Harper may not have any other options but to use disallowance. If the federal government doesn't fulfill its responsibility and obligation to protect its minorities, it will, once again, be breaking a solemn promise of Confederation. The old axiom still holds true: break the promise, break the deal. And that deal is the country itself. We are getting perilously close to losing this country if we continue to appease Quebec by giving in to human rights violations. When Pierre Trudeau spoke that day in the Senate, he also warned us what would happen if we didn't use the blunt tools of the BNA Act: "I would not like to be here to have to use them, but I can tell you one thing: It will be the end of the 'peaceful kingdom.' "
