A constitution is the cornerstone of a state: in addition to defining its public powers, according to the principle of the separation of legislative, executive and judicial powers, it reflects its fundamental values. Canada being a federation, the Canadian Constitution allows provincial legislatures to make any amendments they wish to their own constitutions (section 45).
This is what Quebec chose to do in 2022, by first inserting two of its fundamental characteristics into the constitutional law of 1897, namely: (1) Quebecers form a nation; and (2) French is the only official language of Quebec, then by decreeing that it is no longer required to swear an oath to the king in order to sit in Parliament.
These initiatives are important because they make it possible to affirm the official nature of Quebec’s particularities in a constitutional text that judges must take into account when delivering their judgments.
But other Quebec specificities also deserve to be officially recognized.
Supremacy of God versus Parliamentary Sovereignty
Recognition of the supremacy of God is one of the fundamental values enshrined in the Canadian Constitution.
However, this explicit attachment to religion probably legitimizes the maintenance, in Canada, of a) appreciable tax privileges granted to registered charitable organizations that offer no social benefit other than to “promote religion” and b) the inclusion in the Criminal Code of the religious exception for hate propaganda, when it is pronounced in good faith and based on a religious text.
The recognition of the supremacy of God is not part of Quebec’s fundamental values. It is the Quebec Parliament that determines, under the principle of parliamentary sovereignty, the principles and manner in which relations between the State and religions must be organized. Moreover, the fundamental importance that the Quebec nation accords to secularism is explicitly recognized in the preamble to the Quebec Charter of Human Rights and Freedoms (hereinafter the Quebec Charter).
It would therefore be very important and judicious for Quebec to quickly add this specificity to its own Constitution. This would give it the necessary legitimacy to establish, if it so desires, its own system for recognizing registered charities that respect Quebec secularism, in addition to providing additional foundations for defending the secularism of the Quebec state.
Multiculturalism versus civic values
While multiculturalism is one of Canada’s fundamental values, in Quebec, it is the general well-being of citizens that prevails, as stated in section 9.1 of the Quebec Charter, which stipulates that “human rights and freedoms are exercised with respect for democratic values, the secular nature of the State, the importance given to the protection of the French language, public order and the general well-being of the citizens of Quebec.”
This is an important difference, which should be highlighted in the Quebec Constitution, since this fundamental value expresses the purpose of the rights and freedoms of Quebecers, thus allowing a balance between individual rights and collective rights.
Women’s right to equality
Women’s right to equality is part of the fundamental values of both Canada and Quebec. However, Canadian multiculturalism, combined with religious accommodation, promotes the penetration of religious norms within the state and encourages fundamentalist interpretations that are rarely favorable to women’s right to equality.
This is why the Quebec government was keen to specify, in its Act respecting the religious neutrality of the State, that to be deemed admissible, a religious accommodation must imperatively respect “the right to equality between women and men.” It was also keen to recall, in the recitals of its Act respecting the secularism of the State, the importance that the Quebec nation attaches to equality between women and men and to include the equality of all citizens in its principles.
In its judgment on the Act respecting the secularism of the State, the Court of Appeal also described as “innovative” the fact that the Act expressly included the equality of all citizens in its constitutive principles. For it, if the Act links the principle of equality to secularism, it is likely because of the tensions between religious precepts and equality, particularly gender equality. This particular attachment to proactive protection of women’s rights to equality, often mistreated by religions, must also be enshrined in the Quebec Constitution.
The Quebec Charter
Finally, the Quebec Charter, which precedes the Canadian Charter since it was adopted unanimously in 1975, is distinguished by the fact that it does not limit itself to prohibiting discrimination, but also guarantees a whole range of rights and freedoms. The protection of citizens’ freedom of conscience, through the secularism of the State, is a good example.
The Quebec Charter should therefore also be included in the Constitution of Quebec.