The Rule of the Courts

M. Akram Faizer

emerged as the second largest party with 54 seats, followed by the Reform Party with 52 seats. 3 Things went from bad to worse on October 30, 1995, when only a bare majority of Quebeckers voted “no” to an independence referendum called by Quebec’s nationalist provincial government. 4 Canada also seemed a laggard in terms of the rule of law. Although its Constitution Act of 1982 finally ended the 1931 Statute of Westminster framework whereby the British Parliament retained the power to amend Canada’s constitution, this patriation was obtained without the support of the provincial government of Quebec because the new constitution failed to recognize Quebec as a distinct society and its provision of a Charter of Rights and Freedoms, including its guarantee minority language rights was perceived to be a threat to Quebec’s police powers. 5 The Charter also authorized the Canadian and provincial legislatures to temporarily override Charter rights and freedoms by way of a Notwithstanding Clause (“NWC”) that from my youthful perspective undermined the rule of law by allowing the Canadian parliament and each of its ten provincial legislatures to effectively veto a decision of the Supreme Court of Canada. 6 As a young English-speaking Quebecker, I vividly recall the Government of Quebec invoking the Charters’s notwithstanding clause overrule, via Bill 178, a Supreme Court of Canada decision that concluded that Quebec’s Charter of the French Language, known as Bill 101, violated the right to freedom of expression when it disallowed the use of English and other non-French languages on commercial signs. 7 To my then-mind, this was akin to allowing the State of Kansas to enact a state law overturning Brown v. Board of Education, after the U.S. Supreme Court concluded that racially 3 Id. 4 Gerald L. Gall, Quebec Referendum, 1995, The Canadian Encyclopedia (Historica Canada) (Date published/updated), https://www.thecanadianencyclopedia.ca/en/article/ quebec-referendum-1995 (last visited Dec. 30, 2025). 5 Canada History Project, Why Quebec Refused to Sign in 1982 , https://www.canada historyproject.ca/1982/1982-07-quebec-refusal.html (last visited Dec. 30, 2025). 6 Canadian Charter of Rights and Freedoms, Part I of Constitution Act, 1982, s. 33, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11. 7 Ford v Quebec (AG) , [1988] 2 SCR 712

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