Why Quebec’s proposed constitution has legal experts, civil rights groups sounding the alarm

Quebec Premier François Legault took many by surprise when, last month, his government introduced a proposed constitution for the province aiming to reflect its “distinct national character.”

The constitution, he said, would protect the common values of the province, including the French language, secularism, the right to an abortion and equality between men and women. 

But in the weeks since, the legislation has been the subject of growing consternation among legal experts and civil liberties groups, who warn it would centralize power, weaken judicial oversight and infringe on individual freedoms.

“We have a government that wants to enshrine the so-called Quebec values at the expense of rights and freedom of all Quebecers, but especially the minorities,” said Laurence Guénette, a co-ordinator with the Ligue des droits et libertés, a Quebec human rights group. 

“The word ‘constitution’ itself is very appealing to many people in Quebec, but in reality the bill just weakens the Quebec Charter of Human Rights.”

The legislation — Bill 1 — includes more than just the draft constitution. It modifies more than a dozen laws, including the Quebec Charter, to better balance the “collective rights of the Quebec nation” with individual rights, according to the bill’s preamble.

It also seeks to defend Quebec’s use of the notwithstanding clause “without any requirement to contextualize or justify the provision.”

And it would prohibit publicly funded organizations from using those funds to pay for court challenges of laws that protect “the fundamental characteristics of Quebec.”

The English Montreal School Board, which receives public funds, challenged the province’s secularism law, known as Bill 21, which bans public employees in positions of authority, including teachers, from wearing religious symbols. That challenge has made its way to the Supreme Court.

Sylvia Martin-Laforge, director general of TALQ, an anglophone rights group, said the legislation would hurt the ability of English-language institutions to protect themselves.

“The core constitutional principles, including the rule of law, responsible government and democratic governance — that must be maintained, and hopefully strengthened, not weakened with a bill like this,” Martin-Laforge said.

Faced with criticism over the legislation, the Quebec government committed to a round of consultations, but legal experts say that won’t be sufficient. 

“It must be very open and public and inclusive,” said Karine Millaire, a professor of constitutional law at l’Université de Montréal.  

“We’re talking about a constitution, not something that we should talk about in secret.”

The province has given interested parties until Dec. 3 to submit feedback, and then they will hold hearings with selected parties.

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Millaire was among a group of 28 law professors, political scientists and other academics who wrote an op-ed in Le Devoir questioning the legitimacy of the process. 

She expressed reluctance to participate because she doesn’t want to lend credence to a process she feels falls far short.

“Many groups and many experts are really concerned that at this stage, we could just be instrumentalized,” she said.

“We don’t want to say at this stage that it’s possible to legitimize the process. It’s too late.”

Stéphane Beaulac, another constitutional law professor, said the consultations appear to be a “window-dressing type of process.”

Drafting a constitution should be a long process, which involves wide-ranging consultations to ensure the documents reflect society as a whole, Guénette said.

In fact, she pointed out, Quebec’s process runs contrary to the guidelines laid out by the United Nations High Commissioner for Human Rights, which has a lengthy document detailing how a constitution should be drafted. 

The Quebec Bar Association, which represents lawyers in the province, also took the unusual step of denouncing the legislation in a statement last week.

Rémi Bourget, the organization’s vice-president, said the section of the bill regarding limiting legal challenges amounts to an “act of intimidation” and threatens to erode the rule of law.

“This is meant to have a chilling effect for any organization which could be called to fight for their members’ rights or the public’s rights, and this should not be part of the constitution,” he said.

In its statement, the bar condemned two other recent bills, one that would give the government power to track doctors’ work and another that attempts to limit unions’ funding for legal challenges over the constitutionality or validity of a law.

Together, he said, these three pieces of legislation can be seen as an attempt by the government to limit “citizens’ ability to assert their rights.”

Quebec bar association condemns recent CAQ government laws in rare political move

Quebec Justice Minister Simon Jolin-Barrette did not return a request for comment.

Legault has said the constitution aims to assert Quebec’s “distinct national character.” 

“When we look at our history, our survival as a nation was improbable, but we are still here,” he said when tabling the bill. Among Canadian provinces, only British Columbia has its own standalone Constitution Act.

For Quebec — which never formally signed the federal Constitution Act of 1982 — the idea of adopting a provincial constitution has long been intertwined with its nationalist aspirations.

Opposition parties have welcomed the idea, but say it amounts to a political document as Legault’s Coalition Avenir Québec party lags in the polls ahead of next fall’s provincial election.

“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,” Pablo Rodriguez, the leader of the Quebec Liberals, said after the bill was tabled.

In Ottawa, a spokesperson for Justice Minister Sean Fraser said the government “continues to carefully analyze the proposed draft constitution.” 

“It is a complex document that deserves a thorough study,” Lola Dandybaeva said.

“This important debate belongs, above all, to Quebecers.”