Quebec Premier François Legault during question period at the legislature in Quebec City, on Oct. 1.Jacques Boissinot/The Canadian Press
There is something foreboding about a provincial government that violates two of the fundamental human rights in Canada’s Constitution – freedom of conscience and religion, and freedom of expression – and then announces that it wants to write its own constitution. It portends a document that will divide people along politically drawn lines.
That is exactly what is happening in Quebec.
On Oct. 9, Premier François Legault announced out of the blue the tabling of a bill that will create a Quebec constitution. No one saw it coming. No one was consulted. But what it proposes is entirely predictable: a “law of laws” that puts the collective rights of the province’s secular French-speaking majority above all others.
Most constitutions are designed to protect the individual from the state, but Quebec’s proposed constitution does the opposite. It’s no soaring declaration of the inalienable rights of humanity.
Instead, it declares that “the Québec nation is the holder of intrinsic and inalienable collective rights.”
It’s a political document that empowers the government to limit individual rights deemed to pose a threat to the “fundamental characteristics of the province” – the French language, state laicity, civil law and immigration based on integration (as opposed to multiculturalism).
This is what Mr. Legault did with another law, adopted in 2019, that forbids public-facing government employees – teachers, police officers, judges, crown prosecutors and more – from wearing symbols or clothing that reflects their faith while at work.
The Act Respecting the Laicity of the State violates the fundamental rights mentioned at the top of this editorial and has only survived a court challenge because it is shielded by the invocation of the Constitution’s notwithstanding clause, which must be renewed by the National Assembly every five years.
This no doubt informs the Legault government’s intention in Bill 1 to minimize the hassles of the notwithstanding clause, which it refers to as a “parliamentary sovereignty provision.”
Invoking the clause would mean “no application for judicial review …may be brought in order to have the Act or provision referred to in the parliamentary sovereignty provision declared inoperative,” the bill proposes.
There are other worrisome aspects to Bill 1, such as the lack of a clear amending process, the creation of a lapdog “constitutional commission” of appointed protectors of Quebec’s legally defined fundamental characteristics, and the utter lack of consultation in the drafting of the law. But this goes to the heart of the issue.
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The constitutions of democratic countries work only when they are rooted in law, not politics. They may attempt to negotiate a balance between individual rights and collective rights but do so in limited ways that make the former the default setting.
In Canada, the human rights protected by the Charter are tempered by the first clause of the 1982 Constitution, but “only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”
The notwithstanding clause is likewise an attempt to balance the power of the courts with that of elected officials.
But as a legal constitution, it starts from the premise that individual rights are paramount and are embedded in law. Quebec’s proposed bill is a political constitution that starts from the opposite premise: that the majority needs protection from a minority of others who might not share its language and beliefs, and that these protections should be embedded in the quicksand of political necessity.
To make that happen, the proposed constitution gives vast powers to the Quebec National Assembly and the politicians in it and then shields itself from judicial oversight. The rights of Quebeckers would thus be subject to the whims of elected officials who answer only to the needs of their electoral fortunes.
Quebeckers clearly want their government to defend their language and culture. But universal human rights of equality and liberty are not some confection of English Canada. Quebeckers should demand that Mr. Legault scrap a law that would turn their fundamental freedoms into the playthings of politicians.