Leonid Sirota: Quebec's constitutional plan is rushed and careless

Bill 1 is fatally flawed in terms of its content and its compatibility both with the Constitution of Canada and sound legal principle.

By: Leonid Sirota

Most Canadians do not think about their provincial constitutions. They might, indeed, be surprised to hear that provincial constitutions exist. After all, no province has a “written” constitution. Provincial constitutions, much like the British one from which they are historically derived, exist as almost entirely uncodified assemblages of laws, judicially-articulated principles, and conventions derived from political practice, and can mostly be modified by ordinary statutes.

But in Quebec the provincial constitution has long attracted somewhat more attention. Scholars and even politicians have from time to time mused about the desirability of writing down a Quebec constitution — and while for some this would have been a prelude if not a trigger for independence, others saw such an endeavour as quite compatible with Quebec’s remaining part of Canada. As it happens, Richard Albert and I have co-edited a book called A Written Constitution for Quebec?

We were asking the question. Now, the Quebec government wants to answer in the affirmative. It has introduced Bill 1, a 40-page legislative package that would enact a written Quebec Constitution and two other statutes, as well as amending numerous other laws including, purportedly, the Constitution Act, 1867. The opposition parties are against, and much of the commentary so far is aghast. One excitable law professor has described the bill as a “legislative coup.” I would not go that far, but I too think that Bill 1 is fatally flawed in terms of its content and its compatibility both with the Constitution of Canada and sound legal principle.

Bill 1 falls well short of its stated ambition to be “the law of laws.” It does not even attempt to codify the provincial constitution in a manner that would make it accessible and understandable to citizens without legal training, which would be a worthwhile endeavour. The Quebec Constitution would claim that the legislature “is sovereign in the areas under its legislative jurisdiction”, but not explain what these areas are. (One would still need to refer to the Constitution Act, 1867 to find out.) It would incorporate by reference “[t]he system for the protection of human rights and freedoms provided for in sections 1 to 38 of the Charter of human rights and freedoms (chapter C-12)”, and leave the citizen with the task of finding and reading that statute. It would say nothing at all about constitutional conventions.

Besides this, the most striking feature of the Quebec Constitution would be its emphasis on the “collective rights” of the “Quebec nation.” In this respect it does attempt, if not a coup, then a minor revolution. The Canadian and Quebec Charters, as well as their counterparts in Alberta and Saskatchewan, are concerned with protecting the rights of individuals. They recognize that these rights must sometimes be limited in order to give effect to collective concerns and, in some cases, the rights of others. But the Quebec Constitution would reject a vision where the rights of the individual are primary — though not unlimited — in favour of one where the “nation” and its identitarian claims have (at least) equal standing, under the Orwellian pretence that “[t]hey contribute to the protection of human rights and freedoms.”

At the same time the Quebec Constitution would set up a hierarchy of individual rights, subordinating religious liberty not only to a collective right to secularism but also to sex equality. It is not clear how this new arrangement is to coexist with an older provision that allows religious institutions to engage in what would otherwise amount to unlawful discrimination, so that, for example, the Catholic Church cannot be required to ordain female priests. Canadian courts have long resisted creating fixed hierarchies of rights. While this does not mean they have got every case right, the general approach is sound. The Quebec Constitution would overturn it in the name of a state ideology that uses equality as a cudgel against disfavoured minorities.

This is by no means the only way in which Bill 1 is incompatible with the Canadian constitutional order. Ostensibly, it recognises that Quebec is part of a “Canadian federal union.” However, the recognition is half-hearted at best and, in important ways, Bill 1 attempts to refashion Canada’s constitutional arrangements. This is most obvious in the attempt to replace the province’s Lieutenant Governor appointed at the direction of the federal prime minister with an “Officer of Quebec” and perhaps — though the drafting is very ambiguous on this point — to have this “Officer” appointed by the provincial premier. This flies in the face of the requirement in the Constitution Act, 1982 that changes to “the office of the … the Lieutenant Governor of a province” require the agreement of Parliament (or at least the House of Commons) and all 10 provinces.

Bill 1 would also require the Quebec premier to put forward names of prospective nominees for Quebec seats on the Supreme Court and in the Senate. Here, at least, it clearly recognizes that the actual appointment power lies with the prime minister, who may refuse to go along with Quebec’s demands. Nevertheless, Bill 1 makes an obvious attempt to pressure the federal government into outsourcing appointments to key national institutions to Quebec — and presumably to other provinces if, or rather when, they decide to imitate it.

Given the scope of the changes Bill 1 would bring about, one would think that it is being enacted with great care and deliberation. In some key respects Bill 1 is in fact quite carelessly drafted. This is most strikingly so in that, while it would claim “precedence over any inconsistent rule of law,” the Quebec Constitution says nothing about how it can be amended. On the face of it, this would suggest that any attempted amendment, no matter how necessary and how broadly supported, would be invalid. That would be absurd, and presumably is not what the bill’s drafters intend, but that is what the bill says.

Perhaps such problems could have been avoided if the Quebec government had handled the process of drafting something as important as a “law of laws” more transparently. But there were no public hearings on it before it was presented to the legislature, and very little engagement with anyone not already on board with the government’s project. The government has, at last, agreed that everyone, and not just hand-picked submitters, will be allowed to present their views to the legislative committee that will study Bill 1. Yet it has imposed a compressed timeline for making these submissions, which does not suggest a great deal of open-mindedness on its part.

Of course, process is not an end in itself, but it is a means for building the kind of broad consensus that could legitimize the Quebec Constitution in the eyes of the voters. The government’s procedural choices are not inherently unreasonable, but they limit opportunities for consensus-building. So too does limiting the time civil society has for engaging with the draft. Invoking closure or otherwise cutting off debate in the legislature would also signal that the government has no time for seeking agreement, yet with only a year left before the next election is due, the temptation to do so will be strong.

Whatever criticisms one may have of Bill 1, however much one might disagree with its collectivist ethos and resent its challenge to the Canadian constitutional order, one would have to acknowledge its significance if it represented a broad consensus of Quebec as a political community. Conversely, if it is little more than a last roll of the dice or a vanity project undertaken by a government elected three years ago without a mandate for constitutional reform, and facing not merely electoral defeat but, as of this writing, complete annihilation, our assessment of its significance and indeed legitimacy ought to change. So far, the Quebec constitution project looks rather like the latter. We shall see whether the Quebec government is able to generate the sort of consensus and even enthusiasm among the citizenry that would suggest that the former description is more apt.

As an exiled lawyer, I am not well-positioned to make predictions. But I won’t be holding my breath.

Leonid Sirota is an associate professor at the Reading Law School (U.K.) and a senior fellow at the Macdonald Laurier institute, as well as the founder of the Double Aspect blog.

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