The Quebec premier’s constitutional discussion paper – “Quebecers: Our Way of Being Canadian. Policy on Québec Affirmation and Canadian Relations” – was a surprising addition to the busy news cycle last week.
Over four years have passed with little comment since Premier Couillard first expressed his openness to engage in constitutional discussions that could lead to a vote in the National Assembly in Quebec endorsing the 1982 Constitution Act.
Whatever the motivation behind the Quebec proposal to reopen the constitution, the most troubling initial reaction was the now all-too-familiar nuance-free refusal by the prime minister to consider any constitutional reform whatsoever.
He employs the same categorical response to timidly sidestep other inconvenient debates and overdue constitutional initiatives essential to strengthening our democracy, like electoral reform or serious senate reform, and the use of consultative referenda.
The prime minister claims to act in the public interest, arguing that opening the Constitution in any way is just too difficult and distracting for Canadians, and that referenda generally are “bad things to happen” that “give people a chance to lash out at institutions…”
Yet nothing could be further from the truth. Constitutional debate and reform may be “difficult”, but it is an absolutely essential and ongoing component of a well-functioning representative democracy.
The Constitution is a “living tree” and belongs to the people of Canada.
Our elected leaders cannot shrink from their profoundly important obligation to serve the people and facilitate, whenever needed and with the consent of the people, changes to the fundamental law of the land for the benefit of present and future generations of Canadians.
In March 2013 I commented on Premier Couillard’s first announcement of his desire to engage in constitutional discussions. Among other things, I suggested that drafting a new preamble to the Constitution could be a mechanism for the recognition of Quebec’s distinctiveness that would constructively engage all Canadians. If the premier is now serious about pursuing constitutional reforms that strengthen both Canada and Quebec, would he be open to this approach? I include my earlier commentary below because the suggestions and cautions therein are still fully pertinent and applicable today. I look forward to the debate.
“I congratulate Philippe Couillard on his election as leader of the Liberal Party of Quebec, and I note with interest his openness to engaging in constitutional discussions that could lead to a vote in the National Assembly in Quebec endorsing the 1982 Constitution Act. I find it refreshing, but I have several notes of caution that must be raised.
Mr. Couillard proposes that a future Quebec government would undertake conversations with the other governments in Canada to determine how to proceed forward. He suggests that this could include other subjects, such as Senate reform, and could be concluded during the “symbolic window” of the 150th anniversary of Confederation in 2017.
In moving forward, it is important to remember a couple of lessons from the debates over the Meech Lake Accord and the Charlottetown Accord. First, it can be confusing to undertake multiple constitutional reforms at the same time. Linking different reforms can be unprincipled and deprive people of a chance to decide each on its own merits. Second, the Constitution belongs to the people of Canada, who must be consulted directly with respect to all significant reforms by way of referendum. If discussions proceed simultaneously on different subjects, there should be a separate referendum question on each.
In this light, discussions could proceed simultaneously on both Senate reform and what is the very important and serious step of drafting a modern and inclusive preamble to our Constitution. But whatever proposed reforms to the Senate and the preamble ultimately emerge must be put to Canadians in separate referendum questions.
By way of brief background, it must be noted that Quebec is not excluded from the Constitution of 1982.
The Constitution of 1982 is the fundamental law of the land everywhere in Canada, including Quebec, notwithstanding the regrettable fact that the then sovereigntist premier of Quebec, René Lévesque, refused to sign the final document. Seventy-two of 75 Quebec MPs in Parliament voted in favour of the changes and, since 1982, Quebecers have not hesitated to rely on the Constitution and its Charter of Rights and Freedoms, in the courts and elsewhere.
However, although not legally necessary, it is nevertheless desirable that the National Assembly of Quebec formally endorse the 1982 constitutional changes.
Mr. Couillard and most federalists in Quebec point to the need to recognize Quebec’s distinctiveness in some way in the Constitution. Certainly the time is overdue to enact an inspiring preamble to our Constitution that accurately describes our great and diverse nation. The current preamble refers only to Canada being founded on principles that recognize the supremacy of God and the rule of law.
It is possible, for example, that Quebec could be recognized as a distinct, free and democratic society in accordance with the principles of both the Canadian and the Quebec Charters and with a unique contribution to Canada’s constitutional identity. This would be accomplished at the same time as engaging all Canadians in drafting a preamble that would accurately reflect how all parts of Canada contribute to a country much bigger than the sum of its parts. This approach would ensure that the effort at constitutional change would be a unifying force, not a divisive one.
Finally, any new preamble to the constitution should be submitted to a national referendum. The Charlottetown referendum established a constitutional convention that the Canadian people must be directly consulted on all serious constitutional reforms. As at Charlottetown, Quebec and any other province can conduct the referendum under provincial legislation.
While I have raised some specific concerns with Mr. Couillard’s proposals, I welcome his genuine desire to engage Canadians on issues of such fundamental importance to Canada’s future. The challenges of the 21st century will take both engaged citizenry and bold national leadership that rallies us all to work together, in the national interest.”