A constitution? In this economy?

Could Quebec become the second province with a written constitution?

Simon Jolin-Barrette scrums, Oct 7

Perhaps you missed the historic day. On Thursday at the National Assembly in Quebec City, Quebec Justice Minister Simon Jolin-Barrette tabled a draft constitution for Quebec. Jolin-Barrette’s boss, Premier François Legault, marked the occasion with a speech to the National Assembly. “I’m overwhelmed with emotion,” Legault told the assembled legislators. “It’s up to us now to shoulder the burden of continuing our beautiful nation’s history. Vive le Québec!”

It’s so hard to lift a room. Every opposition party voted to block the government from even tabling the draft constitution. They’re outnumbered by Legault’s (governing, deeply unpopular) Coalition Avenir Québec, so the document got tabled. The other parties are all against Legault’s and Jolin-Barrette’s constitution scheme, to differing degrees. Paul St-Pierre Plamondon, the leader of the smallest Parti Québécois caucus in 50 years but heavily favoured to win next year’s election, called the document une bébelle, a bauble or gimmick, before he’d seen it. He spent the week saying what I’d have advised any separatist leader to say: that the Canadian constitution takes precedence over any provincial rule, so any attempt at a lasting constitution for Quebec is a mockery of Quebec’s (read: the Parti Quénécois’s) aspirations. That’s not what I believe, but it’s the correct line for St-Pierre Plamondon.

More generally, the opposition parties — and most commentators — say the constitution must be a gimmick, because Legault’s government is sinking like a rock and it’s well into the let’s-try-this phase that befalls every unpopular government.

Just about the only good news for the CAQ is that there’s a still a year before the next scheduled election. There will still be time to switch him out for a new leader before the campaign starts. Not that there’s any obvious successor, some inflatable Mark Carney type hovering in the wings. Jolin-Barrette is often named as a likely candidate. He clearly finds Simon Jolin-Barrette impressive. He does little things to stand out from the crowd, like favouring suits several shades lighter than everyone else’s default navy. But the author’s motive shouldn’t be the only lens for analyzing this thing, because the CAQ still commands a majority, so this constitution seems likely to pass.

I’m a little surprised to discover I kind of like this provincial constitution, or at least the idea of one. This will take some explaining.

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Turns out I was in Quebec City all week to watch all of this happen. When I got on the train on Monday, I wasn’t planning to write about anything. This trip was a kind of study break.

For more than four years now, I’ve been a regular on the Thursday-night pundit panel on Radio-Canada’s flagship newscast, Le Téléjournal. Think of it as the French-language version of the CBC’s At Issue panel. I’m the one with the accent.

Though it’s only several minutes a week, I take the Rad-Can gig seriously. We spend a lot of time discussing Quebec politics, of course. I figured I should get a refresher course. I spent a three-day week — the National Assembly usually sits Tuesday to Thursday when it’s sitting — following scrums, watching Question Period, having coffee with politicians from a few parties. I’ve been visiting the National Assembly since I was 21 but it had been too long since my last visit. A lot was new to me, including a sprawling undergound “welcome pavilion” for tourists that opened in 2019.

Much of the week’s news was devoted to the great and small matters that preoccupy any legislature — public-sector wage negotiations, the heritage designation of a special violin, the eligibility of a biker-gang member for municipal elected office. But while I was on the train to Quebec City, Jolin-Barrette posted a video in which he said he’d table a draft constitution for Quebec “in the coming days.” This ended up defining the week.

“A constitution is the law of laws,” Jolin-Barrette says in the video. “It brings together in one document all the principles and foundations of a state.” This one would be “the mirror and shield of the Quebec nation.” If I’ve got my mythology right, that makes Jolin-Barrette Perseus.

It would be an exaggeration to say the prospect of a constitution generated great excitement. The PQ hated it. The slowly collapsing little Québec Solidaire party hated it more. Just the act of unveiling a so-called constitution without proper consultation, sprung on them by a government that didn’t campaign on the idea or conduct public consultations before revealing its text. Which, incidentally, is here, in English, for anyone playing Constitutional Nerd Home Edition.

The Liberals, under the new leadership of former federal Trudeau cabinet minister Pablo Rodriguez, were actually less hostile, but they leaned heavily on the notion that the timing’s lousy. People can’t afford homes or pay for the groceries, Rodriguez said, sounding more like Pierre Poilievre than I expected. Why now?

Once or twice a day Legault would walk from his office to the legislature’s chamber, assuring waiting reporters that “a great day” was coming.

Finally the great day came. In his news conference, Jolin-Barrette called it “a turning point in the history of a nation” and name-checked Félix Leclerc, Leonard Cohen and a bunch of former premiers.

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What’s a constitution? It’s the basic operating system for a society, the set of rules and procedures that underpin the legislative process and the legal system. Often it’s written down, sometimes not, or at least not in one place, as is the case with Britain’s annoyingly diffuse but remarkably durable constitution.

Canada’s 1867 constitution managed a neat trick, writing down a lot of specific rules but also porting much of British constitutionalism into the arrangement with a single line in the preamble saying Canada would have a constitution “similar in principle” to Britain’s. Pierre Trudeau’s Constitution Act, 1982 was a major firmware update, but it didn’t invalidate all of the 1867 constitution, nor much of the impressionistic lore-and-precedent British stuff.

Now, here’s the thing that barely got mentioned by anybody while I was in Quebec City: In a federation, sub-national political entities have constitutions too. Every state in the United States has a written constitution. Here’s Vermont’s. And every Australian state. Here’s Queensland’s. And all the German Länder. Here’s Brandenburg’s. These written constitutions often predate the national constitution, but today they’re legally subordinate to the big one. Usually they say so.

If that’s the case, then why have subnational constitutions at all? Well, first of all, you have them anyway. Canadian provinces have constitutions — there’s even a reference to “the constitution of the province” in S. 45 of the federal constitution — but they’re mostly just British-style collections of habits, traditions and ordinary legislation.

But secondly, when you write your subnational constitution down, you kick off a conversation about the local application of broad principles that could last for generations. State constitutions routinely offer more complete protection for minority rights, or for what we might call economic rights like the right to an education or health care, than the U.S. constitution does. As Arizona judge Clint Bolick puts it in this panel discussion,

“[I]f you are a believer in federalism, you must be, in my opinion, a believer in state constitutionalism — because don’t forget that for most of American history, state constitutions were the primary and, as to the states, the only protection of individual rights. It’s only a recent phenomenon that we have come to look at the federal Constitution as the primary source of our rights, which I think has it exactly backwards.”

Only one province has published a written constitution: British Columbia, in 1996. Here it is. Why BC? I suspect largely because a good constitutional scholar, Andrew Petter, was in the province’s NDP government at the time. So Petter was able to remind his colleagues what most Canadian politicians have missed: written national constitutions are usually, in most countries, complemented by written provincial constitutions. The repatriation of 1982 should reasonably have led to a proliferation of written provincial constitutions. Instead, because Quebec’s government was politically isolated in 1981 and because the next federal government was led by a Quebecer, everyone spent years trying to rewrite the federal constitution. Followed by a Quebec secession referendum. Followed by decades of trauma in the constitution-nerd class. Partially sheltered behind the Rockies, British Columbia was able to do what should, arguably, have come naturally everywhere: I see your constitution and raise you mine.

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Let’s look at Jolin-Barrette’s handiwork. As Phil Authier reported in The Gazette, the new document would:

“Entrench the Charter of the French Language; Quebec Charter of Human Rights and Freedoms; abortion rights; Quebec’s dying with dignity law; the notwithstanding clause.

Allow government to reject the symbols of the monarchy.

Allow government to modify the Canadian Constitution.

Change the title of lieutenant-governor to officer of Quebec; the position would now be appointed by the Quebec premier.

Ban groups from using tax dollars to contest laws before the courts.

Specify Quebec’s participation in the appointment process for senators and Supreme Court judges.

It states the capital is Quebec City; flag is the fleurdelisé; motto is ‘je me souviens.’”

The part of the draft constitution that really leapt out at me is Section 2, which says, “The Constitution of Québec has precedence over any inconsistent rule of law.”

The contrast with Section 2 of British Columbia’s Constitution Act, 1996 is instructive. That one reads:

“Despite anything in this Act to the contrary, this Act must be construed as subject to the Constitution Act, 1867 and amending Acts applicable to British Columbia, and to the order of Her late Majesty Queen Victoria in Council for the union of British Columbia with the Dominion of Canada under the authority of that Act.”

So the BC constitution states, right at the top, that it is subject to the Canadian constitution. And the Quebec draft constitution states, right at the top, that it isn’t.

Of course my first question at Jolin-Barrette’s news conference was about this contrast. “Precedence over any inconsistent rule of law”? How’s that going to work? If a judge found a conflict between this new constitution and the Canadian constitution — and, believe me, we would not have to wait long for that — should the judge simply ignore the federal law?

Jolin-Barrette climbed down immediately. “In the system in which we operate, the Canadian constitution takes precedence,” he said. And: “The Canadian constitution remains, because we have been within the framework of this constitutional regime since 1867.”

So the second paragraph of the whole bill is kind of… independence cosplaying. No wonder PSPP, the PQ leader who is well-positioned to win next year’s elections, doesn’t like this constitution. He’d prefer a “real” constitution for an independent Quebec.

There are other sections where the draft constitution makes grand claims it wouldn’t easily deliver. At one point it announces that for Quebec’s national assembly, a simple majority vote is enough to leave Canada. Congratulations, I guess. But Canada’s Parliament has other rules, which it is not free to ignore. The draft Quebec constitution’s provisions for naming Supreme Court justices, senators and the lieutenant governor — sorry, apparently we’re now supposed to call this person the “Quebec officer” — are similar. The Quebec premier would make suggestions, as premiers often do now. The appointments are still made in Ottawa.

If I were an independent member of the National Assembly, I’d propose a bunch of amendments to the bill containing this draft constitution. There’s a lot not to like in it. But two of the biggest process arguments against it — that it’s the work of an unpopular government, and that it could be amended by a simple majority vote of the National Assembly — cancel each other out. If it smells too much like Legault today, it could be changed next year, and over time it would come to more closely represent a consensus. But in the meantime, other provinces should think about following the precedent set by British Columbia nearly 30 years ago. What do you cherish that is in danger of falling out of fashion? Religious freedom? Environmental protection? Diversity? Free speech? Jolin-Barrette chose the right to abortion. Other provinces might agree, or instead put the limited but real protection of a provincial constitution behind some other value. Citizens would champion parts of these newly-written constitutions, dispute others.

This is what federalism looks like, all over the world. It’s no wonder the current PQ leader is upset. But Canada spent decades looking for some way to put an end to constitutional disputes. Would we really be worse off if we made them a national sport?