Liberal democracy is retreating around the world, giving way to increasingly authoritarian governments. One of the most eloquent examples is of course south of our border with Donald Trump. But are Canada, and Quebec, safe from such a drift? Nothing is less certain, says constitutionalist Louis-Philippe Lampron in his most recent essay “Democracy will not defend itself on its own.”
“Trump can come to us too. All the loopholes he is trying to exploit also exist here,” said the law professor at Laval University in an interview with The Canadian Press.
Obviously, the situation in the United States cannot be compared to that of Canada at the moment. However, what is happening in our neighbours must serve as a warning to us. Democracies are “fragile” and should not be taken for granted.
“Several completely legal and constitutional mechanisms already allow the various heads of state (and governments in the broad sense) to appropriate – at least temporarily – exceptional powers that have the effect of putting the other two branches of government out of the game,” writes Louis-Philippe Lampron in his book which will be published on March 18.
“Gigantic flaw”
The professor reminds us that during the pandemic, the Legault government renewed the state of health emergency for more than two years without going through the National Assembly.
This is a “gigantic loophole in the legal regime allowing a government executive in Quebec to fall into a state of emergency and rule by decree.”
The constitutionalist proposes to make the renewal of this “state of emergency” more restrictive by integrating “mechanisms requiring the achievement of qualified majorities in stages, the threshold of which should be increasingly difficult to respect over time.”
“Paper shield”
Louis-Philippe Lampron reminds us that one of the pillars of the rule of law is the sharing of powers between the executive, the legislative and the judiciary.
“It was Montesquieu’s word: the best way to collectively protect ourselves from the abuse of power is to have a system that will ensure that power will always be able to stop power,” he explains.
While this idea is theoretically appealing, when you look reality in the face, you realize that heads of state in Canada have a lot of latitude in how they can use their power.
“When these heads of state decide that they can act without respecting these rules – or by discarding what they consider to be the mere opinion of the other two branches of state – the law can easily be reduced to a mere paper shield,” Professor Lampron writes.
He therefore believes that the government must agree to limit its own power. How? Reforming the voting system to include a proportionality component would have the effect of limiting the possibility of electing majority governments.
“The election of minority governments further limits the confusion between the executive and legislative branches that currently affects the functioning of majority governments, in that it forces the establishment of coalitions with other blocs of elected officials to govern and legislate,” the author says.
He recalls that in the last election in 2022, with our current political system, the Coalition Avenir Québec (CAQ) obtained 72% of the seats with the support of 41% of the voters who voted.
«Bazooka»
Louis-Philippe Lampron also believes that governments must limit their ability to use the notwithstanding clause – “a veritable bazooka” – which protects a law from challenges in court. The CAQ has used it on several occasions, notably in its bill on secularism and the bill for the protection of the French language.
The professor cites as an example an Ontario bill that proposed that this clause be used only temporarily for an emergency situation. The bill containing it is expected to receive the support of two-thirds of the elected members of the Legislative Assembly. Nor could it be used preventively, as is currently the case. The professor considers this safeguard “very interesting”.
“Just imagining what Trump would have done with such exorbitant powers sends shivers down your spine and shows, by a thousand, how this situation cannot last if we seriously want to strengthen the framework that will allow our democratic institutions to resist, in the future, the advent of a Canadian-style Trump administration,” says the constitutional expert.
“Fighting on the buses” for democracy
At a time when our “democratic societies are being stormed, both from the outside and from the inside,” Professor Lampron is launching a rallying cry in defense of our institutions.
“Faced with the dystopia that the orange president and his henchmen are trying to impose a few hundred kilometers from our borders, it is urgent to light a powerful and brilliant democratic counter-fire now!” he writes.
The constitutionalist hijacks François Legault’s famous expression justifying the abandonment of his promise to reform the voting system, writing: “We must find ways to collectively give ourselves the ‘desire to fight on the buses’ to defend our democratic institutions and counter-powers.”
“And the best defense, in the face of authoritarianism of all stripes, is attack!”
–This report by La Presse Canadienne was translated by CityNews
