Law in Quebec

“The Constitution of Quebec, which states its supremacy over any incompatible rule of law, defines the Quebec nation and establishes its attributes and collective rights,” said Quebec Justice Minister Simon Jolin-Barrette before the National Assembly. It is the ”mirror and shield of the Quebec nation,” he added. The minister, facing a barrage of criticism, is now open to organizing a general consultation on Bill 1.

Proponents, while lamenting the lack of consultation, affirm that Bill 1 enshrines widely accepted values in Quebec. Catherine Mathieu, a law professor at the Université de Montréal à Québec and a member of an advisory panel that last year recommended that Quebec “assert” its “constitutional freedom” unilaterally, said she was impressed by the breadth of the proposed legislation.

The 108-report issued by the committee recommended that Quebec use the unilateral amendment procedure provided for in section 45 of the Constitution Act, 1982 (Part V) to introduce changes directly into Canada’s Constitution “as often as necessary,” as it has done in recent years, to enshrine the existence of the Quebec nation and to establish French as its official and common language.

“Quebec is trying to implement this recommendation in several ways, through the adoption of the Constitution of Quebec, but also through other measures that complement it, notably the Autonomy Act, amendments to the 1867 Act, and the creation of the constitutional council,” said Mathieu. “So, Quebec has decided to implement this recommendation to protect its characteristics unilaterally in different ways through these three different mechanisms. The measures that have been put in place are fairly consistent with what was recommended in our report. Time will tell whether the measures will actually achieve the objective.”

Legislative coup d’état

But other constitutional law experts are deeply unsettled by the scope, tone and thrust of Bill 1, introduced by a deeply unpopular government at risk of a devastating defeat in the next election, scheduled for October 2026.

Stéphane Beaulac, constitutional law professor at the Université de Montréal specializing in language law and counsel at Dentons Canada in Montreal, describes the draft constitution as nothing less than “a legislative coup d’état, constitutionally speaking.” Beaulac chastises the government for employing a “flood the zone” strategy made popular by U.S. President Donald Trump by introducing a catalogue of legislative amendments that affect the constitution, governance, programs and public institutions.

“It is the definition of a coup d’état to fundamentally change governance outside the constitutional framework,” explained Beaulac. “That is exactly what we are doing here. Fundamental changes are being proposed outside the constitutional framework within which Quebec’s jurisdiction exists. In my opinion, that meets the definition of a coup d’état.

“They want to force down the throat of the Quebec nation a change that they dare to hope will be fundamental in the way Quebec is governed and thought about – this is enormous. They want to change the constitutional fundamentals in Quebec, and they are doing so in a secretive, pernicious manner, without consultation.”

Louis-Philippe Lampron, a law professor and human rights expert at the Université Laval, said that Bill 1 is in fact a “mammoth” bill that is disguised as a constitutional effort. The proposed “controversial” legislation, added Lampron, will fail to pass “constitutional muster” and will “plunge us” into legal challenges for years to come, at great expense. “We are faced with a mammoth bill that changes the rules of the game that literally underpin the strength of Quebec democracy on several levels,” remarked Lampron.

The draft legislation attacks the pillars of the rule of law and “completely disregards” constitutional rights that already exist under the Canadian constitution, including rights long recognized for indigenous peoples and minorities, said Karine Millaire, a constitutional law professor and aboriginal rights expert at the Université de Montréal. “In a state governed by the rule of law, we must be able to control the legality of the state’s actions and protect the rights of everyone, not just a certain majority,” said Millaire. “This bill could very well set the tone elsewhere. We saw this with the use of the notwithstanding clause, which has begun to spread throughout the country. And what we didn’t think was possible before, what we thought was limited by a certain constitutional culture, has now become unconstrained.”

The proposed legislation is plagued with incongruities that run against the current governance structure, and the founding principles laid out in Bill 1, assert constitutional law experts. Under article 18 of Bill 1, the draft legislation plainly affirms that the state is founded on the principles of democracy, the rule of law and the separation of powers. Yet, points out Beaulac, Bill 1 “flagrantly” violates those principles in several ways. The bill reiterates on numerous occasions the importance of the rule of law but forbids bodies that receive public funds from challenging the “operability, constitutionality or validity” of some laws. “A healthy democracy, following the principle of governance based on the rule of law, gives not only individuals but also organizations the opportunity to take legal action to ensure the constitutional validity and legality of public measures,” said Beaulac.

Bill 1 also violates the principle of separation of powers between the legislature and the judiciary, asserts some constitutional experts. The bill creates a new body, the constitutional council, that will be empowered to give its opinion on the interpretation of Quebec’s Constitution when requested by the provincial government or the National Assembly. That “clearly” contravenes Article 96 of the Constitutional Act, 1867, said Beaulac. It also appears that the council’s opinion is “purely” declaratory, said Lampron. “This is a net loss for the effectiveness of human rights and freedoms because the government can decide to do whatever it wants with the opinions,” said Lampron.

The bill repeatedly states that one of Quebec’s fundamental characteristics is that it’s a civil law jurisdiction. It is, but only for private law, noted Beaulac. While public law may have a civil law “flavour,” it flows from a common law legal tradition, added Beaulac. “With such an assertion, it is as if we want to unilaterally change something that is fundamental to the internal legal order of the province of Quebec, and that is to ultimately lead judges to reason in civil law terms, but across the board, not only in private law, but also in public law,” said Beaulac.

Quebec Charter under attack

The bill also “suggests” that Quebec’s integration model, a distinct approach centered on common values and collective identity rather than Canadian multiculturalism, should “colour” all judicial interpretation, according to Beaulac. Likewise, it stipulates that the courts should interpret the Quebec Charter “separately” from the Canadian Charter. “They believe that the Quebec Charter has been perverted by the Canadian Charter, and now they want to force the courts to develop a new line of jurisprudence in Quebec that differs from the Quebec Charter’s line of jurisprudence under the Canadian Charter,” said Beaulac.

Moreover, the bill amends the Quebec Charter and introduces a new notion with respect to the interpretation of the rights and freedoms. The courts will now be called to weigh in between human rights and freedoms and the collective rights of the Quebec nation. But Beaulac takes issue with this new prism. He argues that the concept of collective rights is an “oxymoron” that “distorts and bastardizes” the concept of human rights to put it on an equal footing with the fundamental freedoms of the individual. Human rights and fundamental freedoms are intended in many instance to protect individual interests from the coercive power of the state “so the state does not need the concept of collective rights,” said Beaulac. “It is not the Quebec Charter or the Canadian Charter that grants fundamental freedoms. They are inherent and inalienable to human beings.”

The litany of changes introduced by Bill 1 represent another clear indication that the Quebec Charter’s “effectiveness” is endangered, said Lampron. Ever since the passage of Bill 21, the Act respecting the laicity of the State, the Quebec Charter has been under attack by the Premier François Legault’s Coalition Avenir Québec (CAQ)’s government, he added.

Bill 1 represents an effort to “step on the gas to literally transform” the Quebec Charter from a document that is binding on the legislature to a text that would essentially be declaratory in nature, asserted Lampron. Under Bill 1, it will no longer be the courts that will be able to challenge the choices made by the National Assembly on the basis of rights and freedoms but rather the province’s legislative body itself that will determine the limits of human rights and freedoms, said Lampron. “This in itself is antithetical to the very idea of human rights and freedoms,” noted Lampron. “This is a direct attack on the effectiveness and supra-legislative nature of the Quebec Charter of Rights and Freedoms.”

Indigenous Peoples

Millaire is dismayed that the draft constitution does not contain provisions on Indigenous Peoples, except for three references in its preamble. It asserts that 11 Indigenous nations “exist” on “Quebec’s territory” and fails to recognize the ancestral and treaty rights of Quebec’s Indigenous nations, concepts already enshrined in s. 35 of the Constitution Act, 1982, according to Millaire. It consequently ignores territorial and governance rights, confining the constitutional rights of First Nations and Inuit in Quebec to the right to maintain and develop their original language and culture, she added. Besides failing to seize the occasion to recognize and adopt the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), as British Columbia has, it did not even consult with Aboriginal people, said Millaire. Adding insult to injury, Bill 1 emphasizes the preservation and enhancement of Quebec’s autonomy and territorial integrity, she added.

“With this draft constitution, it’s as if we’re taking even more of a step backward,” said Millaire. “It is a rather egregious approach in terms of colonialism, to reimpose a constitution that would even deny rights that are already recognized in the Canadian Constitution. The message being sent here is that Quebec wants to be more autonomous from Ottawa and, in doing so, would impose a constitution that would recognize even fewer indigenous rights.”

Entrenchment of abortion rights

The entrenchment of abortion rights in the draft legislation too has been denounced. In seeking to protect women’s right to abortion, the bill actually threatens it, said Christiane Pelchat, who co-chaired an independent committee that published a report this past August that proposed 50 recommendations to strengthen the application of Quebec’s secularism law. The Supreme Court of Canada, pointed out Pelchat, has enshrined women’s right to reproductive autonomy based on the rights to liberty, security, and equality guaranteed by the Canadian Charter in four major decisions. As a result, the right to abortion is recognized as a healthcare service in the same way as a vasectomy or knee surgery, said Pelchat.

The problem with Bill 1 is that it is a proposed law that may be passed by a simple majority, said Pelchat. Since it is not a constitutional law “in the sense that it cannot be amended,” it’s a law that can “easily” be challenged, added Pelchat, who is calling on the government to retract Article 28 which declares0 that the State protects “women’s freedom to have recourse to a voluntary termination of pregnancy.”

“Anti-choice advocates could challenge the validity of this article by saying that it is unconstitutional because the government is giving itself the right to protect the right to abortion, when in doing so, it is infringing on the right to freedom of religion or freedom of conscience, or even the right to life of the fetus,” said Pelchat. “Any reason to challenge it will be a good one.”

Mathieu understands the reaction and the fear by Pelchat and women’s groups that this provision could open a certain door. But she believes that the Quebec government is trying to “ensure that this (provision) provides additional protection and does not open the door to a risk of limiting this right.”

The Quebec government should at the very least go back to the drawing board, if not even completely ditch the proposed bill, said several constitutional law pundits. Drawing a constitution and adopting a law that is the “law of laws” cannot be treated as a simple law like any other, said Lampron. It requires extensive consultation with civil society, he added.

 

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This story was originally published in Law360 Canada.