A few days before the 250e anniversary of the adoption of the Quebec Act and the study day of June 22, 2024 of the organization Droits collectives Québec, it seems useful to us to recall the content of the Quebec Act and to plead, acting on the “constitution of Quebec”, that it is time to act.
From the Quebec Act
In its judgment relating to the Law on State Secularism, the Quebec Court of Appeal recalled that the Quebec Act served as a “constitution […] of the Province of Quebec. Although the Royal Proclamation of 1763 contained some elements concerning the latter, as was also the case for the new provinces of East Florida, West Florida and Grenada, the Quebec Act was the first imperial constitutional law establishing exclusively in Quebec.
Let us recall that this first “constitution of Quebec” restored or confirmed in part, in its article V, the rights of the faithful and the clergy who profess “the Religion of the Church of Rome”, as did article VIII for civil laws French women in the colonial judicial system. Article XII provided for the establishment of a Council for the affairs of the “Province of Quebec” holding the power and authority to make Ordinances for the Police, happiness and good government with the consent of the Governor.
However, Article XIV stipulated that such ordinances could be subject to “royal” disapproval. Finally, in a decision rendered on February 29, 2024, the Quebec Court of Appeal, while stating some nuances, judges “undeniable that the Quebec Act sets out in 1774 an important part of the formal constitution of Quebec”.
The imperial laws which will subsequently govern the constitutional status of Quebec will no longer have Quebec as an exclusive subject. The Constitutional Act of 1791 will put an end to the existence of the “Province of Quebec” and will apply to the new colonies of Lower Canada and Upper Canada. The Act of Union of 1840 merged the two colonies under the name “Province of Canada” and the constitutional identity was obliterated.
An Act respecting the Union and the Government of Canada, Nova Scotia and New Brunswick […]or the British North America Act which became the Constitution Act of 1867, will include provisions relating to a “Province of Quebec” which is reborn from its ashes, but also to the new province of Ontario as well as to the two former Maritime colonies having expressed “the desire to contract a Federal Union to form one and the same Power (Dominion) under the crown of the United Kingdom of Great Britain and Ireland, with a constitution based on the same principles as that of the United Kingdom.
Of the Constitution of Quebec
The Constitutional Act of 1867 includes Part V devoted to “Provincial Constitutions”, several provisions of which relate to the “constitution” of the province of Quebec (arts. 58 to 68, 71 to 87, 89 and 90). Furthermore, article 92 § 1 of this law provides that the legislature of each province has exclusive jurisdiction to legislate relating to “the modification of the Constitution of the province […] “. Enacted by the Canada Act of 1982, the Constitutional Act of 1982 will repeal this article 92 § 1, but its content will be taken up in article 45 of the latter law which will, from then on and again, recognize each province, including Quebec, a constituent power.
Quebec did not see fit to exercise such power in order to provide itself with a constitution of its own. But such a project is eminently present in its contemporary history.
From the Draft Constitution of Quebec prepared in 1985 by Jacques-Yvan Morin, through the Estates General on the reform of democratic institutions held in 2003, to the draft Quebec Constitution (bill no.o 196) and the motion in the National Assembly of Quebec requiring “the government to evaluate the proposal aimed at providing Quebec with a Quebec constitution” adopted in 2019, multiple calls have been launched for Quebec adopts such a constitution.
Time to act
Based on the Act respecting the exercise of the fundamental rights and prerogatives of the Quebec people and the State of Quebec (law no.o 99), rightly described as an “embryo constitution for Quebec”, we are of the opinion that Quebec must finally exercise its constituent power to adopt a global fundamental law.
Adopting a Quebec Constitution would make it possible to make more visible the constitutional foundations that Quebec has enriched in recent years through the adoption of several laws that the National Assembly considers to be “fundamental” — and which are today considered to be “quasi-constitutional” legislation, such as the Charter of Human Rights and Freedoms, the Charter of the French Language and the Law on State Secularism.
Whatever the political status of Quebec and to assert its own constitutional identity, this path seems promising to us. It’s time to act.