Since a nationalist government came to power in Quebec, there have been many tensions with Ottawa.
Linguistic disagreements, refusal to grant additional powers in immigration, different conceptions of secularism, clashes on Roxham Road, failure of health funding, appointment of Mr.me Elghawaby despite the unanimous opposition of the National Assembly, clashes over the federal law on official languages and the law on the CRTC, refusal to introduce a single tax return, etc.
Several sources of these tensions come from profoundly different conceptions of what Quebec and Canada are. If we do not want to continue to go from confrontation to confrontation and, in the case of Quebec, from defeat to defeat, we must find ways either to settle our differences or to increase our balance of power.
Today, in this first text, I will talk to you about the Canadian Constitution. No, don’t scream right away, it will have to be reopened one day, it’s an option not to be dismissed too quickly.
Tomorrow, I will talk to you about the other Constitution, that of Quebec.
Before talking about the Canadian Constitution, let’s remember what a Constitution is.
It is the law of laws. It is the legal basis of the state. By adopting a Constitution, the people in a way surrender their sovereignty to it, because after its adoption, apart from referendums, the Constitution takes over. It is therefore the contract by virtue of which, collectively, we agree to live together. It is also one of the main sources of the identity of countries: it defines common values, the rights of the citizens who live there and it determines the means of framing the exercise of power and checks and balances. It’s heavy, as they say in Paris.
For years, when someone suggests opening up the Canadian Constitution, the answer is almost always this: “The fruit is not ripe. However, the reasons for opening the Constitution are piling up and I am convinced that the fruit is no longer ripening, but rotting.
From the point of view of those who believe in a common future for Quebec and Canada, the first reason to reopen the Constitution would be to allow Quebec to sign it by finally having its national specificity recognized by the rest of Canada. The Constitution, like the Charter of Rights and Freedoms, was imposed on Quebec, it is dishonouring for Quebec, but also for Canada, a country whose democratic foundation is, precisely, its Constitution.
The other national question, that of the natives, also requires it to be reopened. Aboriginal nations are not recognized as political entities, because Canada is not defined as a plurinational state.
If one day we want to get away from pious wishes and declarations of principles towards the native peoples, we will have to define our nation-to-nation ties as well as our respective powers: this is done in a Constitution.
But that’s not all. We are still a monarchy. The notwithstanding clause is debatable. The division of powers is badly done and costs us dearly. The spending power of the federal government (which the written Constitution does not even mention) is out of control and is changing the very nature of federalism by turning the provinces into subcontractors of the central government. Federal intrusions into provincial jurisdictions exasperate the provinces from east to west. Municipalities remain creatures of the provinces and only a constitutional change can remedy this. The reform of the Senate remains to be done. The Constitution still affirms that “Canada is founded on principles which recognize the supremacy of God…”, only the English version of the Constitution of 1867 is valid, etc.
These debates constitute obstacles to the creation of a Canada in the image of the nations that make it up and, at least in the case of Quebec and the Aboriginal nations, a brake on their desire to flourish in their own way.
Faced with this list of problems to be solved, a very incomplete list, we can pretend that the fruit needs to ripen, but, in all honesty, we should rather recognize that it is rotting more and more.
And it’s worse than you think. Not only does the fruit rot, but we also tamper with it in the process.
Indeed, the federal government has unilaterally amended the Constitution on several occasions since the beginning of Confederation (notably in 1943 so as not to have to increase the number of seats for Quebec in the Commons). Quebec did the same to affirm the existence of the Quebec nation, declare French as a common language and abolish the oath to the King of England.
However, the Supreme Court remains, by far, the main avenue for amending the Constitution. According to its judgments, it changes the Constitution by interpreting it and even by reinterpreting it, that is to say by making it say things that are not written there, to adapt it to modern society. The gap between the written Constitution and reality is therefore constantly growing, without a political process that would legitimize these changes. This is called government by judges.
Government by judges, unilateral actions by the provinces or the federal government, all these actions also weaken the legitimacy of the document. Former senator André Pratte went so far as to say that “the country’s Constitution is burning”. Indeed, what is a Constitution, a law of laws, worth if it can be changed without the agreement of the people from whom it derives its legitimacy? When a Constitution rots, it is the foundation of the country that is affected.
One day Canada will have to have the courage to try to give itself a Constitution in the image of what it is today. Quebec can prepare for the big night, which it still hesitates to do, or try something new: give itself its own Constitution, even while remaining in Canada.
To read tomorrow: “Constitution of Quebec: the fruit is ripe”