Quebec Justice Minister Simon Jolin-Barrette walks out of the Premier’s office in Quebec City, on Wednesday.Jacques Boissinot/The Canadian Press
Quebec Justice Minister Simon Jolin-Barrette played the martyr last week when his bill to create a provincial constitution was quietly laid to rest.
“Trying to protect our values and what makes Quebec a distinct nation is never a waste of time,” Mr. Jolin-Barrette said the day before the National Assembly rose for the summer on Friday and the Quebec Constitution Act died on the order paper. “I owed it to the people of Quebec, who deserve a constitution in which they can see themselves reflected.”
Touching, but that is not the lesson Mr. Jolin-Barrette, or anyone else who would like Quebec to have its own constitution, should take from the demise of the bill. Perhaps Quebec could one day write a constitution that was centred on protecting individual rights while at the same time mirroring the province’s singular concerns.
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In the shorter term, this perennial preoccupation could become an issue during the election campaign that unofficially kicked off with the rise of the National Assembly last week, and which culminates in an Oct. 5 vote. If so, politicians who promise to take another shot at it should heed the lessons that Mr. Jolin-Barrette seems not to have absorbed.
Let’s start with the fact that a majority government should not impose a constitution on a country or province. One of the sharpest criticisms of Mr. Jolin-Barrette’s bill was that it involved no public consultation.
That’s not just poor planning or high hubris. Critics called it a violation of the International Covenant on Civil and Political Rights, to which Canada is a signatory and which says the public has a right to participate in the conduct of public affairs, such as creating or changing a constitution.
The lack of consultation, and the resulting lack of legitimacy, was exacerbated by the fact the province’s Indigenous populations were shut out of legislation that would affect their treaties and agreements.
This was no grand nation-building project done hand-in-hand with the province’s historic populations and shaped by consensus. To the contrary, it was an attempt by Mr. Jolin-Barrette and the Coalition Avenir Québec government to embed the party’s political agenda into a “law of laws” – thereby making it rather difficult for future governments to propose different policies around such issues as laicity, immigration and language rights.
But that was not the thing that most upset critics. Mr. Jolin-Barrette’s far bigger error was to suppose that no one would be fussed about his plan to subordinate individual rights to the will of the majority.
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His bill declared that the majority had “intrinsic and inalienable collective rights” to protect their culture and language, and he set that right atop of a hierarchy of laws – above even the Quebec Charter of Human Rights and Freedoms.
More than 300 Quebec civil society organizations denounced the bill as a threat to individual rights and the rule of law. Amnesty International called it “regressive and anti-rights, with several of its articles jeopardizing the rights of linguistic and cultural minorities as well as those of Indigenous Peoples in Quebec.”
Of equal concern was Mr. Jolin-Barrette’s attempt to allow the National Assembly to invoke the notwithstanding clause “without any requirement to contextualize or justify” its use, and to shield its use from any judicial review that sought to challenge its constitutional validity. The notwithstanding clause is the only reason Quebec’s law banning many public employees from wearing religious garb or symbols on the job is able to stand, despite its violation of religious freedoms.
If Mr. Jolin-Barrette’s bill had passed, majority Quebec governments eager to put their political interests above individual freedoms would have faced far fewer constraints.
The same bill would have also made it illegal for publicly funded groups, such as school boards, hospitals and universities, to sue the government over any law that the government passed in the name protecting “the Quebec nation.”
A remarkably broad coalition of groups opposed these proposals and helped to bring about the bill’s end. They made it clear they don’t want to live in a province where individual rights are subordinated to the political whims of the party in power – a historically fraught way of being governed.
They instead signalled that they want to preserve their language and culture, but not at the expense of the rule of law and the rights of minorities. Mr. Jolin-Barrette is a martyr only to his inability to understand what matters to Quebeckers.