Lincoln: Let me set the record straight on Robert Bourassa and the notwithstanding clause (I was there)

Same old, same old. The well-worn adage could not be any truer when it comes to the recent change of Coalition Avenir Québec leadership.

All those of us so totally exhausted and upset by the obsessive priority given to identity wedge politics had earnestly hoped that the new premier, Christine Fréchette, would have redirected the government’s energies toward urgently required solutions in critical areas — such as the redress of the very unfavourable financial situation caused by mismanagement and waste, and the failure to deliver effective essential services, including the health care boondoggle within a bloated two-headed system.

However, Fréchette hurried to signal that identity politics would remain the priority of priorities. In her very first meeting with Prime Minister Mark Carney, immediately after her swearing in, the subject that astonishingly occupied pride of place was the notwithstanding clause, which she qualified as an essential tool for the Quebec nation.

So, identity politics and the suppression of fundamental rights will plus que jamais remain front and centre as she forges ahead to give us more of the same before the looming elections, including the inbred CAQ constitution, overwhelmingly decried and rejected by all credible segments of opinion.

And to show us unequivocally that she means identity business, Fréchette intends to renew her cherished notwithstanding clause relative to autocratic Bill 96 a full year ahead of its expiry, thereby laying bare her consciousness that its illiberal provisions could not withstand a judicial review.

Robert Bourassa, left, and Clifford Lincoln at Mirabel Airport in June 1988. Allen McInnis / Montreal Gazette

To justify this cynical ploy, Fréchette disingenuously used Robert Bourassa as a crutch, reminding us that in 1988 the then-premier also used the clause to shield a language law. “Too cute by half,’’ as say the Brits, for the facts portray a very different story.

First, the notwithstanding clause under Bill 178 was voted in after three successive court judgments by the Superior and Appeal Courts of Quebec, and ultimately by the Supreme Court of Canada — therefore post-judgments.

There is a chasm of difference between that one instance of the post-judgment application of the notwithstanding clause and its systematic pre-emptive use to suspend our fundamental rights and freedoms and shield them from judicial review.

Second, the notwithstanding clause under Bill 178 was the subject of extensive prior debates and consultations. Bourassa had initiated several caucus meetings, without time limit, where MNAs engaged in vigorous and frank discussions. He had also convened a special general meeting of the party in Quebec City, widely attended by members including many young Liberals, where again the debate was both lively and respectful.

Bourassa also made himself available for personal meetings, and I recall several open conversations I had with him, right up until the very morning of the National Assembly vote.

Third, when he finally decided at the eventual cabinet meeting to use the notwithstanding clause, Bourassa told us he was doing so regretfully to avoid the possibility of social unrest, given the sensitivity of the issue.

Fourth, he worked actively to avoid having to renew the clause, assigning one of his most important ministers, Claude Ryan, to find a solution which would respect the Supreme Court judgment. This was achieved, and the notwithstanding clause was not renewed at expiry. What a striking contrast with Fréchette’s decision!

Fifth, Bourassa (as indeed René Lévesque) was rightly proud of the Quebec Charter of Human Rights and Freedoms, born under one of his mandates as premier and maintained as the prime law of Quebec, until its cynical dethronement by the CAQ government.

In no way does it enhance the new premier’s credibility to loosely use Bourassa as a crutch to justify a blatantly undemocratic decision, which he most certainly would have neither made nor approved.

Fréchette’s calculated move in renewing the notwithstanding clause in Bill 96 a year before expiry is a small-minded political trick that honours neither herself nor her party. It is surely not the example of openness and trust that we should expect from our government.

Clifford Lincoln resigned from the Quebec cabinet in 1988 over the use of the notwithstanding clause in Bill 178.

Clifford Lincoln, Special to the Montreal Gazette

Clifford Lincoln is a former Quebec Liberal MNA and federal Liberal MP who retired from politics in 2004. He lives in Baie-D’Urfé.

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