A constitution without consultation

There’s been immediate pushback to Quebec’s proposed constitution, which was released in draft form last week. Political leaders in the province are up in arms because the government drafted it without any widespread consultation.

Quebec Justice Minister Simon Jolin-Barette says the proposed constitution will protect distinct language and culture. Measures included in the bill to enact it include what the government deems to be Quebecers’ shared values, including secularism, equality between men and women, enshrining the right to abortion and assisted dying, as well as measures it claims will enhance the province’s autonomy.

The government is calling it the “law of all laws,” however, opposition parties in the province are united in their opposition to it. 

While Liberal Leader Pablo Rodriguez is supportive of the idea of a Quebec constitution, he says this one came to be through a “flawed process.”

“This is a project that should seek to unite, not divide. That means we shouldn’t have a draft written on a piece of paper and then brought before the National Assembly to be part of a political debate where it will become polarized,” he told reporters. 

“A constitution must be a project that unites.”

Québec Solidaire also opposes what’s been put forward by the CAQ, insisting the province doesn’t need “a constitution written in Simon Jolin-Barrette’s office.” Instead, Leader Ruba Ghazal wants to see a constituent assembly with a mandate to draft a constitution.

Parti Québécois Leader Paul St-Pierre Plamondon says simply passing a law with constitution on it changes nothing.

The Quebec Federation of Labour, the province's largest central labour organization, was surprised by the tabling of Bill 1, which President Magali Picard said should have been subject to broad public consultation, not "drafted on the back of an envelope."

In August, Kahnawà:ke Mohawk Territory Grand Chief Cody Diabo told Jolin-Barrette that First Nations are not subordinate to the province and would not be included in any provincial constitution.

“There is no Quebec nation,” Diabo told APTN News at the time.

The Quebec branch of the Canadian Bar Association is monitoring developments with the legislation and determining how best to get involved in the process from here.

‘A strange patchwork’

Johanne Poirier, the Peter Mackell Chair in Federalism at McGill’s Faculty of Law, says that while a single provincial constitution is desirable, given that every province already has one (though most are a collection of statutes and unwritten conventions).

However, this particular document is a strange patchwork that includes new statutes and references to other documents, such as the Quebec Charter of Rights.

“If you just wanted to read the Quebec constitution, you wouldn’t have the list of rights—you’d have to go to a different document,” she says.

“Maybe that could change through amendments, but as is, it’s not an easy document to navigate.”

Poirier says the process will be the sticking point in this particular proposal because there was no inclusive, cross-partisan process or popular ratification.

“They’re cornering the opposition with this,” she says, pointing out that any balking at the process is likely to be framed as being against the idea of a constitution, or the contents, such as abortion rights.

Other proposed changes include renaming the notwithstanding clause of the Charter of Rights and Freedoms to the “parliamentary sovereignty clause.” Poirier says while constitutions are supposed to protect minority rights against majority rule, Quebec’s proposal pushes the balance toward the elected majority of the National Assembly.

Emmett Macfarlane, a political science professor at the University of Waterloo, says several proposals within the legislation are unconstitutional. That includes plans to rename the provincial lieutenant governor the “officer of Quebec.”

“This is simply not something the province has the power to do,” he says. 

“We’ve been down this road before with Bills 96 and 4 in Quebec. It’s unfortunate that the federal Department of Justice has assisted in the judicial vandalism by having those purported amendments reflected in its own consolidation of the 1867 Constitution.”

These efforts have never been tested in court because no government has been willing to do so.

Macfarlane says the amending formula of the Constitution Act, 1867, stipulates that changes to the office of the lieutenant governor of a province require the consent of the House of Commons, the Senate, and all 10 provinces.

Poirier doesn’t see renaming the office as an issue because the functions ostensibly remain the same. She notes Quebec long ago did away with having the lieutenant governor read a speech from the throne. It’s the premier who reads the legislature’s opening address.

The bill also purports to direct the premier to advise the prime minister on the appointment of senators and Supreme Court of Canada justices filling Quebec seats, even though those are fully federal powers.

“This is pure symbolism,” Macfarlane says. 

“And it’s awkward because it’s not the kind of thing you would normally put in a constitutional document because it’s a provision that has no effect.”

A unifying exercise for Quebecers?

The Liberal Party of Quebec’s policy commission floated the idea of a provincial constitution in the summer of 2024, which was presented as a unifying exercise for Quebecers to formalize their status as a distinct nation within a united Canada. 

Antoine Dionne Charest, son of former Premier Jean Charest, was a member of that commission and said at the time it’s the direction Quebec must head in.

“It will say what our fundamental values are, what role we wish to play within the Canadian federation,” Charest said. 

“The goal is to affirm Quebec’s status within Canada, but also to unify Quebecers and to clarify and give more cohesion to Quebec society as a whole.”

Charest said the Liberals have been discussing this proposal since 1967, but the idea is actually much older than that. He hoped that it could be an exercise to entrench minority rights in the province while “finding the right balance.” To his mind, the Liberal Party in Quebec is the only party that can bridge divides, particularly linguistic ones.

In November, the Report of the Advisory Committee on Quebec’s Constitutional Issues within the Canadian Federation recommended adopting a provincial constitution.

Jean Leclair, a law professor at Université de Montréal, says that while it’s easy to talk about the Quebec nation rhetorically, it becomes more difficult when you try to define what its characteristics would be.

 “Quebec doesn’t speak in a single voice,” he says. 

“It’s neither homogeneous nor unanimous. The basic idea behind a constitution is to coalesce people around some ideas, so who will be involved will certainly be a major issue, as is how it will be adopted.”

Questions about the process

Marion Sandilands, a partner at Conway Baxter Wilson LLP in Ottawa, whose practice deals with clients in Quebec on constitutional issues, agrees that who leads the process will be crucial in determining how this process might unfold. 

“Would this be like a Quebec version of Charlottetown?” she asks. 

“Then there could be these conversations about minority rights, but that goes back to the question of who is leading the process.”

Richard Albert, director of constitutional studies at the University of Texas at Austin, co-authored the book "A Written Constitution for Quebec?" Two premiers have consulted him over the last nine years about whether such a project is legally doable.

“There is no legal impediment to enacting a provincial constitution so long as it doesn’t violate the rules in the Canadian Constitution—that has to remain paramount and supreme,” he says.

However, for a provincial constitution to be recognized as such, it would require more legitimacy than just a simple act of the legislature. Albert says that’s the route British Columbia took with its Constitution Act, which he doesn’t consider to be a proper constitution. 

To that end, legitimacy stems from both the popular consultation that informs the writing and from the stamp of approval, which should likely be a referendum. 

“We know from comparative global experience that when people are invited to vote yes or no on a constitution, it succeeds 94 per cent of the time,” Albert says. 

“For risk-averse politicos, there’s a very low risk of failure as long as you manage it well.”

He suspects Quebecers would welcome this kind of referendum because it’s one where they can define themselves within Canada. Instead, the provincial government has presented this as a bill in the legislature, with less than a year to go before an election.

“I’m not sure how the provincial Liberals can stop this process unless they create a public outcry,” Poirier says.

“And I’m not sure that’s going to happen.”

Sandilands says that from a federalist perspective, this is more about renewing the relationship with Canada, as “the idea that Quebec never signed the 1982 constitution is still very much alive.” 

Concerns about consolidation

Leclair points to some specific problems with consolidating existing provincial rules into a single document, rather than working piecemeal with documents like Quebec’s Charter of Human Rights and Freedoms and the Charter of the French Language, and having them under a single “roof.”

The first problem involves determining what degree of completeness the constitution should have in the codification, whether it is highly detailed or not.

“A constitution cannot become a tax law—it needs to retain some abstract wording and can’t go into too many details,” he says. 

“The informality of constitutional rules always gives politicians leeway, so there is a danger of politicians who want to be too precise.”

Leclair adds that there is the additional complication of how a Quebec constitution will mesh with Canada's Constitution.

“For example, Quebec cannot eliminate the lieutenant governor and elect a president,” Leclair says. 

“There are language rights guaranteed by the [federal] constitution and educational rights.” 

Any attempt to entrench minority rights might simply be a repetition of what is in the Canadian Constitution. 

“In theory, it’s a great idea if it’s not aimed at shaking the cage, as we say in French, but the whole process is easier said than done,” he says.

Albert says more provinces and territories should take on this kind of exercise, as it presents an opportunity to mobilize residents in a way that has never been done before. It helps them understand that they have a stake in their society, in the rules that govern them, and the power to define themselves in a way that can be expressed in the constitution’s preamble.

“As long as these constitutional actors have the right advice, there’s no danger." 

Of course, he says some in a province might want to pick a fight with the federal government, so it may serve their political interests to enact a constitutionally problematic constitution, which would likely lead to a battle that would go all the way to the Supreme Court. 

“I would hope that would not happen, but I don’t put that past political actors because there may be some universe in which that helps their electoral fortunes,” Albert says.