Does Quebec Need a Written Constitution?

Jean Charest, former Premier of Quebec (2003-12)

On March 31, 2016, the MacMillan Center, Research Support Program on Intergovernmental Affairs and Québec Identity, and Québec/United States University Grant Program jointly sponsored a Symposium on “Does Quebec Need a Written Constitution?” at Yale University. The Symposium was convened by Richard Albert, Associate Professor of Law at Boston College School of Law, and Visiting Associate Professor of Law and Canadian Bicentennial Visiting Associate Professor of Political Science at Yale University for the 2015-16 academic year. The goal of the Symposium was to bring together a group of scholars from the US and Canada to discuss whether Quebec needs its own written constitution. Each Symposium participant presented a draft paper that analyzed the guiding question from a unique perspective. Overall, the Symposium produced a nuanced and engaging dialogue between the participants and advanced the conversation regarding federalism, identity, and constitutionalism in Canada.

The keynote address of the Symposium was delivered by Jean Charest, former Premier of Quebec (2003-12). Charest expressed his admiration for the work done by the Symposium participants, and his belief that the notion of a Quebec Constitution is a compelling and recurring question within the dialogue of Canadian constitutional politics. Charest elaborated on his experience as Premier of Quebec, and the competing viewpoints regarding federalism and the nature of provincial sovereignty within Canada that he encountered during his tenure. He described his loss in the 1998 election as an example where “defeat is more important than victory”, because the separatist agenda of holding a referendum “disappeared on that evening” due to its disappointing share of votes. Charest described the process of constitutional change as “changing the foundations of a house, of a building. It’s not like changing a wall in a room, which would be similar to typical standard legislation. A constitution is the bedrock, the foundation of the country. It speaks not only to the law and the fundamental law…[but also to] identity, and who we are.” He considered the various points advanced by the Symposium participants during their panels, and commented on the enduring pursuit of an enshrined identity by citizens of Quebec, which has been deemed a “nation” within Canada by the Canadian Supreme Court. He described the “sacred mission” of every Quebec government and Premier of protecting the language and culture of the province, “so that they can allow this unique language and culture to thrive within North America and the world.” He acknowledged that a Quebec Constitution could reinforce the provincial identity of Quebec, and pointed out that identity in this context can be summarized through two distinct questions: “Am I recognized? Am I respected for who I am?” But he asserted that there must be a set of circumstances in which “governments in Canada can lead on this issue and fix the Constitution of ’82”, and provincial constitutions could be a solution that promotes unity rather than fractionalization. He added, “But I don’t see that day on our horizon right now”. He further pointed out, “a healthy, vigorous federal system of government evolves outside of its constitutional framework” and that we should allow this system to evolve naturally rather than through a process of provincial constitutional design. Furthermore, he asserted that the process of designing a fixed, written constitution of Quebec could be more fractionalizing than unifying, and entrench certain factions that have hitherto co-existed in relative stability. Charest concluded by arguing that there may be a point in the future where a Quebec Constitution might be necessary or desirable, but currently it would not solve the key issues regarding federalism and identity that Quebec and the broader population of Canada must jointly face.

The first panel was entitled “A Quebec Constitution within a Canadian Constitutional Framework”, and was chaired by Deborah Mazer (Student, Yale Law School). The session began with a presentation by Patrick Taillon (Laval University) on his paper, “A Quebec Constitution within Canadian Constitutional Law: A Russian Doll or a Trojan Horse?” Taillon described the idea of a Quebec Constitution as a “multi-layered cake” that is intertwined with the Canadian Constitution and constitutions applying to central federal institutions. He argued that “mostly, the Quebec Constitution corresponds to the flexible norms codified in the Constitution Act, 1982”, and identified three types of rules: “rigid constitutional norms amended by multilateral procedure, flexible norms enshrined in BNA Act 1867, and flexible norms that are not connected with the Constitution of Canada.” Taillon pointed out the Supreme Court of Canada consistently rejects the idea of a “hierarchy of constitutional norms”, and suggested that a Quebec Constitution could be an opportunity for change with respect to the categories of norms that apply to provincial powers. Taillon ended by arguing that the idea of a Quebec Constitution could “provide a better answer to the traditional question – what does Quebec want?” The second presenter was Hoi Kong (McGill University), who discussed his paper, “Should Quebec Do the “Write” Thing?  An Inquiry into Constitutional Theory and Practice” Kong began his presentation by pointing out an apparent ambiguity – “A written constitution can simply be a compilation of existing norms and texts that go to the fundamental nature of Quebec; alternatively, it could be an entrenched constitution in the sense that you understand it in the US.” He asked whether the potential Quebec Constitution should work within the existing constitutional structure, or trigger larger constitutional change. He then elaborated on his idea of “deliberative constitutionalism”, which he described by saying, “The point of writing a constitution is not to exert a right of exercised will to create a written document; it’s rather to situate one moment in a conversation that takes place over time.” Kong’s conception of a “deliberative constitution” is one of a gathering place or framework of deliberation that highlights diverse perspectives on policy questions and convenes an illuminating debate on larger questions of identity, policy and society. Kong described the implications of his theory as being twofold (procedural and substantive), and preempted certain objections to this viewpoint: namely, that deliberative constitutionalism may not “perfectly capture motivations of parties in the process of making an entrenched constitution. It entrenches certain kinds of commitments, so the parties will be incentivized to rent-seek and codify their own positions and preferences in the constitution.” Similarly to Taillon, Kong ended his talk by posing a question: “What do we talk about when we talk about the Constitution of Quebec?” The final panelist was Daniel Turp (University of Montreal), who asserted that Quebec unequivocally needs its own written constitution. Turp gave two key reasons for his argument: first, that a Quebec Constitution would codify a “constitutional identity” that reflects the people and values of the province; and second, that the process of constitution writing might lead to “the end of constitutional impasse” that has gripped the country since 1982. He pointed out that Quebec does not accept Canadians’ constitutional identity, as reflected by its refusal to sign the 1982 Constitution Act, and that the process and substance of a future Quebec Constitution would both codify Quebec’s values and peoples, and end the standoff between Quebec and Canada. Turp discussed the implications of whether or not the Constitution could – or should – be consistent with the Canadian Constitution, and how the dynamics of ratification would change depending on this element. To close his session, Turp circulated a document that reflected his view of what a Quebec Constitution might look like. It contained 30 articles, and a draft resolution with an amendment to the Constitution of Canada that illustrated one avenue of reconciling both constitutions.

The second panel was entitled “Popular Sovereignty and a Quebec Constitution”, and was chaired by Leonid Sirota (Student, New York University School of Law). Nelson Wiseman (University of Toronto) began the session by presenting his paper, “A Codified Constitution for Quebec: A Futile Pursuit or the Making of a Sovereign People?” Wiseman described a Quebec Constitution as a “concrete symbol of an abstract idea – communicating the collective identity of the Quebecoise”, and identified his notion of “constitution-itis: an elite pleasure industry that elevates normal politics to the realm of constitutional politics.” Since a constitution is an interpretive device that symbolizes a national founding moment, Wiseman pointed out, it would appear oxymoronic to create a written constitution at this point in time. He also asserted that a constitution must be “codified to the popular mind”, and asked, “but what is the popular mind of the Quebec people?” Wiseman pointed out that there is little popular awareness of the idea of a Quebec Constitution, which “has failed to stir the nationalistic tendencies” of the people of Quebec. Referring to the judicial role within a provincial constitutional structure, he asserted that there is an underestimation of the significance of transferring power from political arena to the courts. Overall, Wiseman identified the process of creating a provincial constitution as a “major leap in evolving relationship between Quebec and Canada” and pointed out, “like a medical condition, in remission, it may resurface. If a codified constitution does come about, the PQ might have its idealistic cake and eat it too.” Next, Maxime St-Hilaire (University of Sherbrooke) discussed his paper, “A Constitution Both For And By Quebec?”, in which he described the Quebec Constitution as an “ILO: Unidentified Legal Object”; he also stated from the outset his view that Quebec does not have the power under Canadian constitutional law to enact its own written constitution. St-Hilaire argued that it is a mistake to liken provincial constitutions to federated constitutions in other federal states; specifically, in Canada “there is no split of entrenched law into its federal and state component parts”, and thus a provincial constitution would be essentially “super-legislative” and invalidate other provisions. Furthermore, he asserted that under Canadian constitutional law, the only way to enact formal provisions that are part of the supreme law is to use special ad hoc procedures that are different from (and heavier than) a statute implemented by a provincial legislature; thus, any Quebec Constitution “may not bind successors on substantive issues.” Thus, for a legislature or federal parliament to create super-legislative provisions through special amendment procedures would be “usurping the supreme law of Canada, and unconstitutionally amending the formal constitutional amendment procedure.” St-Hilaire concluded by remarking that Quebec does not need an “unconstitutional constitution” as the solution to the issues it faces. The final presenter for this panel was Mark Walters (Queens University), who discussed his paper, “Constitutive Power and the Nation(s) of Quebec”. Walters approached the question from the “perspective of the existing and emerging constitutional relationships that Quebec and Canada have with the aboriginal peoples”, and asked how that relationship might affect the attempt to create a Quebec Constitution. His view of the original constitution was one of a “constitution in motion – a dynamic process” that “can settle the identities of nations or the boundaries of polities, but also respond to realities where there are no settlement identifications nationally or politically.” He described the layers of complication involving governance in territories held by aboriginal peoples, and asked whether there was an explicit contemplation of constitutions for these communities. For Walters, a central question is how to identify the “we” in Quebec: “The people of Quebec are speaking [in the constitutional design process], but who are the people of Quebec and do they include the aboriginal peoples?” He cited the example of the Cree peoples and their assertions of statehood: “they view their self-government rights as inherent to their national identities. This is not dissimilar to ‘founding’ in Turp’s draft constitutions, except they relate to the Cree not the Quebec people.” Walters suggested that the best approach might be “to regard the idea of a Quebec Constitution not as a full and final statement of who is who, but rather as initiating a process of deliberation” that involves reckoning with the historical tension inherent in identifying communities, nationalities and “the people”. He expressed his concern that trying to write a constitution in the midst of such tension could be damaging to the stakeholders in question, and concluded by saying, “My view is to keep people talking; don’t close any doors at this point. I think I’m a deliberatist [referring to Kong], and I don’t feel it’s necessary to try and write everything down at this point in time.”

The third and final panel was entitled “Comparative Perspectives on Subnational Constitutions”, and was chaired by Ana Beatriz Robalinho (Student, Yale Law School). The first panelist was F.L. Morton (University of Calgary), who discussed his paper, “Provincial Constitutions in Canada”. He initially framed the discussion by comparing Alberta and Quebec, which often fall together in questions of federalism and provincial autonomy, and describing Alberta’s “squandered opportunities” that involve heritage funds and taxation/expenditure limitations. Morton then moved into an analysis of the constitutional provisions that could provide a basis for a Quebec Constitution, and concluded, “it might make sense to proceed on a more minimalist, ad hoc basis on Section 45 grounds.” Calling the Section 45 path prudent and simpler than using Section 43, he asked how to best strike the constitutional balance between “unelected judges and elected governments” in a federated system such as Canada. He also argued that Quebec could “pursue the possibility of 1) returning the appointment of provincial judges to provincial governments, and 2) making the provincial courts of appeal the final and authoritative courts of appeal – at least for any province that chooses to adopt a provincial constitution.” Through that process, the Supreme Court of Canada would hear any conflict between federal and provincial constitutions, whereas provincial courts of appeals would be the final arbiters on strict interpretive issues regarding the provincial constitutions. Citing the final line of his paper, Morton asked the group whether Justin Trudeau might finish the project his father began; namely, the project of true provincial federalism. The second discussant was Erin Delaney (Northwestern School of Law), who presented her paper, “Constitutionalization À L’Anglaise: Lessons for Québec from the United Kingdom”. Delaney began by saying that she could not provide a definitive answer as to whether Quebec should have a written constitution; rather, she offered some thoughts from the constitutional debate in Britain regarding the autonomy of Scotland with the federation of the UK: “Both stories present a difficult question: can you create constitutional politics out of ordinary politics? Can you create a constitutional moment? What is happening at a pragmatic, practical level?” Delaney then cited the possibility of political actors rent-seeking and advocating short-term political preferences rather than entrenching stable constitutional norms in the process of constitutional design. She described the UK as having a “constitution as super-statute, rather than an instantiation of national identity or something greater than that concept.” She then turned to the Scottish debate, and outlined the history and political actors relevant to the constitutional question, arguing, “early draft constitutions were very much claims to independence; they were all about establishing the pouvoir constitutionnel. How do we identify this ongoing quasi-nation state?” Essentially, Delaney maintained, the Scottish believed they needed to assert a whole set of political preferences that are not shared by England; they wanted “coherence and a properly negotiated federal solution system at the national level.” She closed by asking two questions, one of which referred to Taillon’s metaphor: “Can Quebec maintain the Russian doll level within the Canadian constitutional framework? Is there a more coherent status within the federal subnational system?” The final panelist was Sofia Ranchordás (Tilburg Law School; Resident Fellow, Yale Law School), who presented her paper, “The Functions of Subnational Constitutions in Dual and Asymmetric Federalism: The Belgian Case”. She began her talk by describing Belgium and the Flemish independence movement as a case study that could serve as a valuable lesson for Quebec: “A constitution for Flanders would be a duplication of existing constitutional provisions. Perhaps it would be the same for Quebec.” She asked whether a provincial or sub-national constitution should primarily play a symbolic role or whether the other functions are actually carrying out a significant functional role; in particular, she asked whether it could be a disguise for a separatist agenda. Whereas the Flemish and Quebecois are both deprived of a written constitution, Ranchordàs suggested that perhaps Flanders doesn’t need a sub-national constitution to identify its discrete community. Although “sub-national constitutions can complete programmatic constitutions”, Ranchordàs queried whether there was a genuine need to duplicate the rights guaranteed by the national constitution. All of these rights are already protected by legislation, and when it comes to fundamental rights they are regulated at the federal and international level: “it is important to look at federalism from a dynamic perspective – maybe not all federations should have the right to codify. Sub-national constitutionalism does not define federalism. It is not intrinsic to federalism – in the case of Flanders, it would not be a way of enshrining sub-nationalism; it might create constitutional duplication and create problems for members of all the various communities.” Ranchordàs concluded by stating that while she does not have the answer as to whether Quebec needs its own written constitution, Quebec might understand through the Flemish example that it could end up duplicating what is already written in and guaranteed by the Canadian Constitution.

Written by Sameer Jaywant

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Wednesday, April 6, 2016