Document Information

Date: 1980-07-08
By: Quebec
Citation: Meeting of the Continuing Committee of Ministers on the Constitution, The Charter of Rights, Quebec’s Position, Doc 830-82/003 (Montreal: 8-11 July 1980).
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DOCUMENT: 830-82/003
MEETING OF THE CONTINUING COMMITTEE
OF MINISTERS ON THE CONSTITUTION
THE CHARTER OF RIGHTS
Quebec’s Position
Montreal, Quebec
July 8-11, 1980
Toronto, Ontario
July 15-19, 1980

CHARTER OF RIGHTS
Quebec’s firm and resolute commitment to the protection
of citizens’ basic and individual rights is a course that
was undertaken several years ago. Clearly, the protection
of Quebec citizens provided by the Quebec Charter of Rights
and Freedoms, in conjunction with the federal Bill of Rights,
is unrivalled in scope by that of few–if any–other provinces
Quebeckers unanimously support the fundamental freedoms
(such as freedom of religion, of thought, of speech, and
of the press) and the basic principles of democracy (such as
universal suffrage, elections every four or five years, and
annual sittings of Parliament). These rights exist and are
respected in Quebec.
Thus the question raised by the federal proposal for a
constitutional Charter of Rights is not “Does Quebec intend
to protect the rights of its citizens?” but rather “What is
the best way to protect the rights of the citizens of Quebec?”
The proposal to entrench a broad range of individual
rights in the constitution provokes a number of concerns
Before supporting such a Charter, Quebec must be convinced
that constitutional entrenchment offers the most effective
means of protection, that the rights covered in the Charter
represent values common to all Canadians, and that their
meaning and scope are well defined.
i) Advantages of entrenchment
a. The protection of individuals would, in principle, be
enhanced by entrenchment of a Charter of Rights in
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the constitution. Entrenchment would prohibit any
body, even a legislature, from violating the princ-
iples contained in the Charter
b. It might also be maintained that the courts would accord
greater value to an entrenched charter than to a
merely legislative one, which, as the expression of
the will of a particular legislature, can easily be
amended by a conflicting expression of will from the
same body. In any case, the courts have so far refused
to grant to the present federal Bill of Rights any
status clearly above that of other laws.
c. The ceremony of entrenchment would confer on the
Charter of Rights a symbolic and inspirational value.
d. Lastly, entrenchment would ensure uniformity of basic
and individual rights across Canada.

ii) Disadvantages of entrenchment
a. Entrenchment would limit the legislative jurisdiction
of the provinces to an extent determined by the
number and variety of rights contained in an entrenched
Charter. The results of reform in federal and
provincial jurisdictions must be known before the
concrete consequences of entrenchment of a Charter
of Rights can be adequately assessed. Entrenchment
could be disadvantageous if it occurs before agreee
ment on the division of powers between federal and
provincial governments.
b. Entrenchment could lead to a “government of judges”
and may not constitute the most democratic means of
protection of rights
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The subject of rights and liberties is a vast field,
still in a state of constant evolution. Constitu- ~
tional entrenchment would inevitably complicate and
hamper this evolution and would strip elected assem-
blies of the power to shape it in accordance with
democratic principles. This responsibility would
pass from the hands of elected representatives into
the hands of appointed judges.
This was, in fact, the point made recently by one of
the most eminent members of the Canadian judicial
system, Mr Louis-Philippe Pigeon, former judge of the
Supreme Court: “I wish to emphasize that, in consi-
dering the probable effect of an entrenched Charter
of Rights, we must realize that entrenchment would
entail handing over to the courts a significant
portion of the power to legislate. In my opinion,
it would be mistaken to view this as a function com-
parable to that of interpretation of a federal consti-
tution.”
The Canadian political system is founded on legislative
representatior and sovereignty. By the transference
of legislatures’ powers to the courts, citizens are
deprived of their most effective instrument of influence
over the evolution of their individual rights. Thus,
the fundamental principles of democracy are at stake in
the decision on whether or not a Charter of Rights
should be entrenched, since we must decide whether it
is citizens or judges who will determine the evolution
of rights.
The broader the range of rights to be entrenched in the
Charter, the Fore serious this latter disadvantage
becomes.
For example, the federal draft proposes to entrench the
freedom of citizens to move about from one province to
another. No one, and least of all Quebec, objects to this
freedom as a general principle. But when one considers
its meaning, implications, and consequences, a problem

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arises. This freedom might mean that Quebec could, for
example, be prevented from controlling entry into the
professions, as it does now, on the ground that Quebec
regulations were more restrictive than those of other
provinces and hence interfered with mobility.
Similarly, entrenching the freedom of movement could lead
to the standardization of educational systems across Canada,
because differences among systems could be interpreted as
barriers to mobility.
If the courts did interpret this right in such ways, and
Quebec subsequently wanted to proaose, for example, to
amend the Charter to restore a more norral situation, it
would have to set in motion the process of amending the
Constitution in which this right naf been entrenched.
And we know that constitutional change does not come easily
in Canada.
Obviously these disadvantages, inflexibility and diminished
legislative responsibility, would be much less serious if
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the Charter entrenched only the most fundamental rights and
freedoms, whose meaning and implications are well-known and
have been tested in the courts, These rights and freedoms
represent values to which all Canadians subscribe, and
hence pose fewer difficulties. This is the case for the
freedoms mentioned earlier–freedom of religion, freedom
of expression, freedom of thought, freedom of the press, and
so on–the fundamental principles of democracy. Along with
these freedoms come the basic rights in criminal proceedings-
the presumption of innocence, the right to a fair trial, the
right to counsel, and so forth. The question here, then,
is which rights should be incorporated in any charter
In short, Quebec wants the fundecenzal rights of citizens to
receive the broadest and most effective protection possible,
but it questions what the best reams of providing such
protection would be. Quebec therefore approaches the issue
of the entrenchment of rights with e very open mind, even
though it has serious doubts about this method and is weighing
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its advantages and disadvantages. But Quebec will oppose
the use of a Charter in a direct attempt to alter its
social and cultural priorities, as might happen in the
area of language rights.
The special case of language riohts
Quebec firmly opposes the entrenchment in the Constitution of
language rights whose effect would be to limit its freedom of action
regarding so vital a matter as its collective future. Quebec cannot
agree to exchange its autonomy in this area for limited powers subject
to judicial interpretation.
The very act of entrenching language rights in the Constitution
would freeze them for future generations. Should any change be
necessitated by social developments that are as normal and healthy
as they are unpredictable, a constitutional amendment would be
required. For Quebec, this would mean not only that the language
rights of Quebeckers had been determined by all the provinces and
the federal government to begin with, but also that any adjustments
to meet changing needs would require the consent of these same parties
For all intents and purposes, once language rights in Quebec had
been decided, they would be set in stone. The least one can say
is that this is a rather inflexible arrangement for an area essential
to the future of Quebeckers, Anglophones as well as Francophones.
In short, language policy in Quebec society requires an
attention and a flexibility that no constitutional entrenchment
could provide.
with its proposed Charter and Statement of Principles, Ottawa
is clearly trying to re-establish the difficult situation that used
to prevail in the area of language policy in Quebec. According
to these federal proposals, language rights would be incorporated
into the Constitution and, so to speak, defined for all Quebeckers
forevermore. In light of all the discussions, proposals, debates,
and demonstrations that were required, and all the false hopes that
were raised, before the social and linguistic peace that now reigns
was achieved, this stubborn determination to change the situation
and provoke renewed debate is difficult to understand.
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In fact, Quebec is inclined to believe that this debate might
be only a pretext to modify Bill lOl so as to “rebilingualize”
Quebec and re-establish the free choice of language of instruction
provided under the ill-famed Bill 63.
with regard to the protection of minorities, Quebec believes
that no constitution, however complete, can force people to change
their attitudes, or governments to pursue policies that they do
not really believe in. And that is what is really involved in the
issue of protection of minorities. Hollifying general provisions
for protecting the rights of minorities will not really change
the fate of these minorities if the political will to do so is
not there.
Only concrete measures adopted with respect to specific matters
can really improve the status of minorities. In this connection,
Quebec must say, without undue modesty, that it thinks its treatment
of its Anglophone minority has been truly exemplary. The situation
of English speakers in Quebec is inconparably better, in all re
spects,than that of French-speaking minorities elsewhere in Canada.
No Charter, no general statement of intention, has been necessary.
For all these reasons, Quebec is of the opinion that with
regard to language rights, it is wiser to follow this recommendation
by the Pépin-Robarts Commission:
“In our opinion, the protection of linguistic rights
at the provincial level can be treated, at this time,
in either one of two ways: extending the constitution-
al guarantees of Section l33 to every or to some
provinces, or removing these guarantees, inviting the
provinces to legislate safeguards for their minorities,
taking into account the diversity of local situations,
with the hope that a consensus between the provinces
might form on a common denominator which eventually
could be included within the constitution of the
country.”
After due consideration, we now think that the second
option would be wiser and more likely to be successful
in the long run, involve less confrontation, and be
more in agreement with the spirit of the federal
system.