Legault’s Unwritten Constitution
The Legault government has used the notwithstanding clause to make the National Assembly, not federal courts, the arbiter of the Quebec constitution.
The most controversial elements of Francois Legault’s government enacting Bill 21 on the secularism of the Quebec state and Bill 96 amending the Charter for the French Language has been the invocation of the “notwithstanding clause” overriding a number of sections of the Canadian Charter of Rights and Freedoms. The effect of this has been to shield them from lawsuits asking the courts to declare the two laws unconstitutional. These laws have provoked considerable debate in the rest of Canada, which fits into a larger debate over the proper use of Section 33 of the Charter, and how it feeds into the question of whether the “will of the people” takes precedence over the rights of individuals.
In considering the constitutional status of these two laws, however, we need to think about not just the constitution of Canada, but also the constitution of Quebec. The secularism and language laws are meant to be part of the Quebec constitution, and not subordinate to other legislation. This, alongside Quebec grievances about the Charter of Rights and the way federal courts have interpreted it that go back to patriation 1982, explains the use of the notwithstanding clause, as well as a similar clause in regard to Quebec’s own charter of rights.
One may wonder what we mean by the “Quebec constitution,” given that Canadian provinces, unlike, for example, American states, do not have written constitutions. Quebec, like many other governments, especially that of the United Kingdom, has a combination of written and unwritten constitutional principles that together form its constitutional framework. While Quebec does not have a single, codified document referred to as a "constitution," there are several fundamental pieces of legislation and key principles that amount to an unwritten (more precisely, partially written) constitution. These include:
The Constitution Act, 1867 (formerly the British North America Act, 1867): Originally a British statute, it outlines the distribution of powers between the federal government and the provinces in Canada, including Quebec. While it primarily deals with the division of powers, it has significant implications for Quebec's legislative authority.
The Constitution Act, 1982: This act includes the Canadian Charter of Rights and Freedoms, which guarantees fundamental rights and freedoms to all Canadians. Its provisions apply to all provinces, including Quebec, even though it was enacted over the objections of the Quebec government, and forms the basis of the belief across the Quebec political spectrum that Quebec has not given consent to the present Canadian constitution.
The Civil Code of Quebec: This comprehensive Napoleonic civil code permitted under the Quebec Act of 1774 governs private law matters such as property, contracts, and civil rights. It reflects the unique civil law tradition of Quebec, maintained after the transfer to British rule, and is a key component of the province's legal framework.
National Assembly Act: This is the primary legislation that governs the operation and organization of the National Assembly. It outlines the composition of the assembly, the election of members, parliamentary procedures, the roles and powers of various officials within the assembly, and other important aspects of its functioning.
The Public Administration Act: This law outlines the organization and structure of the Quebec public administration, including the roles and responsibilities of government ministries and their interactions with the cabinet. It provides the legal framework for the operation of government departments and agencies.
Council of Ministers Act: This law establishes the Council of Ministers, which is a formal body within the cabinet responsible for advising the Premier of Quebec on various matters. It outlines the composition and functions of the Council of Ministers.
The Charter of Human Rights and Freedoms: This provincial law sets out human rights and freedoms protected within Quebec, and it often supplements the protections provided by the Canadian Charter of Rights and Freedoms. It is not part of the Canadian constitution, and is an act of the National Assembly. While in principle courts may use it to invalidate other legislation that violates rights that it protects, the National Assembly may insert language into new laws that states they apply notwithstanding the Quebec Charter.
Case Law: Judicial decisions, especially those from the Supreme Court of Canada and Quebec's own courts, contribute to the unwritten constitution by interpreting and elaborating on constitutional principles and rights.
Constitutional Conventions and Practices: These unwritten rules and customs shape how political institutions function and interact. They include practices such as the use of the French language, the role of the Lieutenant Governor, and the operation of the National Assembly.
Referendums and Political Agreements: Certain referendums and political agreements, such as the Charlottetown Accord and the Meech Lake Accord, both of which failed as proposed constitutional amendments, have also played a role in shaping Quebec's constitutional framework.
Distinct Society Clause: While not a standalone piece of legislation, the "distinct society" recognition for Quebec was proposed as part of constitutional negotiations in the past and is often considered an important concept in understanding Quebec's unique role within Canada. There is consensus within Quebec that it holds as a statement of fact, and the phrase continued to be invoked regularly in political debate within Quebec.
Since the Quiet Revolution of the 1960s, there have been regular proposals for Quebec to draft a written constitution. The Parti Quebecois governments of Rene Levesque called for such a document, though they put it in the context of the accession to sovereignty, and were looking to draft a constitution for a sovereign state. More recently, former Premier Jean Charest, after leaving office, called the idea “compelling and recurring,” though ultimately subordinate to the question of settling Quebec’s concerns about the federal constitution and its place in Canada. Academics propose a Quebec constitution regularly, with Yale University hosting a conference (at which Charest made his remarks) in 2016, and a collection of academics publishing a book on the question in 2023, explicitly noting that the passage of Bills 21 and 96 raises the question.
The Legault government does not currently call for a written constitution, but it has explicitly sought to put a stamp on Quebec’s unwritten constitution. In addition to elevating secularism and the primacy of the French language as constitutional principles, it has asserted the right to amend the 1867 Constitution Act unilaterally when the amendment is to the province’s own constitution. Bill 96, the language law, purports to amend the Constitution of Canada to read that Quebecers form a nation” and that “French shall be the only official language of Quebec. It is also the common language of the Quebec nation.”
The challenges of having an unwritten constitution, especially when it consists of documents coming from different levels of government, including the British parliament at Westminster, is that it is unclear which parts take precedence when those parts contradict. This has been an issue since patriation in 1982, when the drafters of Charter of Rights deliberately sought to offset nationalist aspects of Quebec legislation that form part of the unwritten constitution. The Legault government has tried to address this by making the National Assembly, not federal courts, the arbiter of the Quebec constitution. However, it has not done this explicitly, hiding the notion behind Quebec’s lingering rejection of the 1982 Constitution Act and populist declarations that "in Quebec, this is how we live."
References:
(PDF) Nous, peuple du Québec : un projet de Constitution du Québec | Daniel Turp - Academia.edu
What François Legault talks about when he talks about immigration | CBC News
The Constitutional Amendments in Quebec's Bill 96: Whose Consent is Needed?
La nouvelle loi 101 laisse entrevoir un inattendu débat constitutionnel | Radio-Canada.ca
Une constitution pour le Québec : une idée qui revient en force | Radio-Canada.ca
The Project Gutenberg E-text of The English Constitution, by Walter Bagehot
Une laïcité en Amérique. Genèse de la loi québécoise sur la laïcité de l’État
La Loi sur la laïcité de l’État. La formalisation d’un compromis politique québécois
Loi sur la laïcité: comme si Québec avait amendé la Constitution, a plaidé un avocat | L’actualité
Projet de loi 96 | Une « Constitution québécoise » incomplète | La Presse
Constitution du Québec | Le fruit est mûr | La Presse
Pour Une Nouvelle Constitution Du Québec - McGill Law Journal
A-23.1 - Act respecting the National Assembly
M-30 - Act respecting the Ministère du Conseil exécutif
A-6.01 - Public Administration Act
C-12 - Charter of human rights and freedoms
CCQ-1991 - Civil Code of Québec
l-0.3 - Act respecting the laicity of the State
C-11 - Charter of the French language
Does Quebec Need a Written Constitution? | The MacMillan Center
A Written Constitution for Quebec? | McGill-Queen’s University Press
Why Quebec’s Bill 96 is good for national unity
Quelle constitution pour le Québec?
https://m.assnat.qc.ca/en/travaux-parlementaires/projets-loi/projet-loi-96-42-1.html
https://www.assnat.qc.ca/en/travaux-parlementaires/projets-loi/projet-loi-196-38-1.html?appelant=MC