In comments made on June 12, 2022, Quebec Justice Minister Simon Jolin-Barrette recalled that the Canadian Charter of Rights and Freedoms had not been adopted by the National Assembly of Quebec and that there was a “legitimacy deficit”. He also said he believed “that we should govern ourselves according to the Quebec Charter” and wanted a “collective conversation” on this subject.
Reacting to such remarks in The duty, Canada’s Minister of Justice, David Lametti, for his part predicted that Quebeckers would be able, during such a collective conversation, “to make themselves heard in order to uphold the Charter [canadienne] “. Qualified by the columnist Michel C. Auger as a “false good idea” and leading, according to André Pratte, to what in Quebec ” [n]straight bones [soient] in tatters”, the proposal to confer primacy on the Quebec Charter reveals, on the contrary, the intention to make a new gesture of self-determination.
We can think that it has its origins in a constitutional demand formulated by the government of René Lévesque in 1985. It is to be hoped that the collective conversation evoked by the minister will take the form of the debate around the adoption of a Constitution Quebec.
In his speech of May 17, 1985, during which he made public a draft constitutional agreement, René Lévesque recalled that ” [l]he people of Quebec gave themselves a charter of human rights and freedoms in 1975 which remains, to this day, one of the most comprehensive in the world” and that “such a charter is the instrument par excellence of the affirmation of the values of a people […] expressed[ant] both its most fundamental convictions and the not always easy choices and trade-offs that must be made in any society. ” He added: ” [L]he Quebec Charter is more generous than the Canadian Constitutional Charter. It also has a quasi-constitutional status and allows the ultimate responsibility for the assertion of human rights and freedoms to be that of the Quebec legislator, elected and responsible to the population for the proper functioning of society. He concluded that Quebec should have the “power to subject its own laws to the Quebec Charter of Human Rights and Freedoms alone.”
Parliamentary sovereignty
This proposal has never been the subject of public deliberation and it is fortunate that it is revived today in the context of a debate that Minister Jolin-Barrette presents as an issue of parliamentary sovereignty and that his opponents regard as that of abuse of recourse to the derogatory provisions.
The appropriate forum for a collective conversation on these questions and on Minister Jolin-Barrette’s proposal should also be the one that will be established to develop a first Quebec Constitution, which he says he wishes to see adopted, which moreover now seems to have the endorsement by Prime Minister François Legault.
Called to be part of a historic process that has led to the adoption of several fundamental laws of a more specific nature, such as the Charter of Human Rights and Freedoms, the Charter of the French Language and the Law on Secularism of the State, and that of the Act respecting the exercise of the fundamental rights and prerogatives of the people of Quebec and of the State of Quebec, an approach aimed at providing Quebec with a formal Constitution would be the culmination of a evolution intended to give Quebec its own constitutional identity.
The collective conversation around the adoption of a Quebec Constitution would also make it possible to discuss — and forge a broad consensus — around the rebalancing between the individual rights and the collective rights of the Quebec nation that Minister Jolin-Barrette calls of his wishes.
The entrenchment of the rights guaranteed in the Quebec Charter in a Quebec Constitution whose amendment would be subject, for example, to qualified majority procedures in the National Assembly, would also have the effect of strengthening and perpetuating the protection of fundamental rights, both individual and collective. And this would be an act that would once again demonstrate Quebec’s desire to be free in its choices.