This short text provides answers to a question I hear often. Many Quebecers are confused and do not understand what the real consequences of the decision of Trudeau repatriated the Constitution (Constitutional Act of 1982) without the consent Quebec (then represented by Rene Levesque). Consequences real or symbolic? And why no Quebec government has dared to sign the constitution as it applies de facto on our province and its laws?
Q: The Canadian Constitution does it apply in Quebec?
A: I have asked this question to an expert in constitutional politics and he said, in essence, yes. The constitution applies to the entire Canadian territory, even in jurisdictions that have not signed the paper. The signature is a formality, laden with meaning and symbolism very important - but this step does not affect the application of the Constitution on the whole territory.
Quebec refrained for a long time to refer to the constitution in its own laws. However, the use of the notwithstanding clause to the Bill 101 implies an inclusion in the framework of the Constitution Act of 1982. In addition, treaties involving the Quebec Native Americans, including that of Nitassinan made history by making explicit reference to the Canadian Constitution.
Finally, the Agreement of Calgary (1997), signed by Prime Ministers the rest of Canada endorses the principle that Quebec will never get anything that would have constitutional significance. In other words, the Constitution will NEVER be amended to Quebec, for any reason whatsoever. The Agreement provides for Calgary symbolic gains for Quebec and reaffirms the equality and absolute equivalence of all provinces. Finally, the premiers at the same time noting that Canada is functional despite Quebec's refusal to sign the Constitution. Note that this agreement was largely drafted by the team of Stephen Harper.
Therefore, we can say that:
1) the Constitution Act, 1982 applies to Quebec without regard to the lack of signature, the objections of the National Assembly or the refusal of elected officials (and elsewhere);
2) Quebec has implicitly acknowledged its application ;
3) Quebec explicitly recognized its application at least once;
4) the rest of Canada refused any concession
5) Act 99 of Lucien Bouchard, who sought to counter both the Clarity Act referendum Dion and the Calgary Declaration of Harper, is a failure - it had no effect.
What else does in Quebec as a bargaining? First, lack of signature carries a symbolic extremely heavy, despite attempts to minimize it. The persistent efforts of Mulroney in this sense are not innocent - Quebec's absence creates an uncomfortable political and ideological, while undermining the "nation building" Canadian (both aligned with the Toronto / Ottawa that aligned with Calgary).
Finally, large areas of constitutional law have not been officially translated into French, despite a clause that required it. Only the English text is law and can be used in legal interpretation. Quebec is entitled to demand an explanation or challenge its validity, particularly with regard to Bill 101. There is a collision between the strictly speaking parts of the Constitution Act of 1982 (excluding the 1867, of which there is no translation having the force of law) and Act 101 applies in Quebec. A clever constitutionalist could consider that some items are not valid or request to suspend the application in Quebec until they have been translated. Question of "arm twisting" policy!
Finally, we note that the recognition of the "Quebec nation" should be analyzed in depth by a constitutionalist. First, the term "nation" does not exactly the same direction and the same scope in French and English. The application of this law has problems: it applies to what or to whom, exactly? Finally, reducing its scope ("within a united Canada") could have consequences - that phrase might even become obsolete. And if it is not included in the Constitution, this Act comes into collision with so many elements of Canadian law it is unenforceable, entirely questionable or downright unconstitutional! If the law recognizing the "Québécois nation" has legal consequences (for example, need to protect the French character of Quebec recognizing Bill 101 and subtracting the Canadian Charter of Rights and Freedoms), it could undermine the constitutional edifice constructed since 1982.
And in this case, the question remains: the Constitution Act of 1982 could it be legal by telescoping, "less relevant" in Quebec than in the rest of Canada?
Q: The Canadian Constitution does it apply in Quebec?
A: I have asked this question to an expert in constitutional politics and he said, in essence, yes. The constitution applies to the entire Canadian territory, even in jurisdictions that have not signed the paper. The signature is a formality, laden with meaning and symbolism very important - but this step does not affect the application of the Constitution on the whole territory.
Quebec refrained for a long time to refer to the constitution in its own laws. However, the use of the notwithstanding clause to the Bill 101 implies an inclusion in the framework of the Constitution Act of 1982. In addition, treaties involving the Quebec Native Americans, including that of Nitassinan made history by making explicit reference to the Canadian Constitution.
Finally, the Agreement of Calgary (1997), signed by Prime Ministers the rest of Canada endorses the principle that Quebec will never get anything that would have constitutional significance. In other words, the Constitution will NEVER be amended to Quebec, for any reason whatsoever. The Agreement provides for Calgary symbolic gains for Quebec and reaffirms the equality and absolute equivalence of all provinces. Finally, the premiers at the same time noting that Canada is functional despite Quebec's refusal to sign the Constitution. Note that this agreement was largely drafted by the team of Stephen Harper.
Therefore, we can say that:
1) the Constitution Act, 1982 applies to Quebec without regard to the lack of signature, the objections of the National Assembly or the refusal of elected officials (and elsewhere);
2) Quebec has implicitly acknowledged its application ;
3) Quebec explicitly recognized its application at least once;
4) the rest of Canada refused any concession
5) Act 99 of Lucien Bouchard, who sought to counter both the Clarity Act referendum Dion and the Calgary Declaration of Harper, is a failure - it had no effect.
What else does in Quebec as a bargaining? First, lack of signature carries a symbolic extremely heavy, despite attempts to minimize it. The persistent efforts of Mulroney in this sense are not innocent - Quebec's absence creates an uncomfortable political and ideological, while undermining the "nation building" Canadian (both aligned with the Toronto / Ottawa that aligned with Calgary).
Finally, large areas of constitutional law have not been officially translated into French, despite a clause that required it. Only the English text is law and can be used in legal interpretation. Quebec is entitled to demand an explanation or challenge its validity, particularly with regard to Bill 101. There is a collision between the strictly speaking parts of the Constitution Act of 1982 (excluding the 1867, of which there is no translation having the force of law) and Act 101 applies in Quebec. A clever constitutionalist could consider that some items are not valid or request to suspend the application in Quebec until they have been translated. Question of "arm twisting" policy!
Finally, we note that the recognition of the "Quebec nation" should be analyzed in depth by a constitutionalist. First, the term "nation" does not exactly the same direction and the same scope in French and English. The application of this law has problems: it applies to what or to whom, exactly? Finally, reducing its scope ("within a united Canada") could have consequences - that phrase might even become obsolete. And if it is not included in the Constitution, this Act comes into collision with so many elements of Canadian law it is unenforceable, entirely questionable or downright unconstitutional! If the law recognizing the "Québécois nation" has legal consequences (for example, need to protect the French character of Quebec recognizing Bill 101 and subtracting the Canadian Charter of Rights and Freedoms), it could undermine the constitutional edifice constructed since 1982.
And in this case, the question remains: the Constitution Act of 1982 could it be legal by telescoping, "less relevant" in Quebec than in the rest of Canada?
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