Comparing the EU's Failed Constitutional Treaty to Quebec's Bill 1: Two Cases of Top-Down Constitutional Overreach

Comparing the EU's Failed Constitutional Treaty to Quebec's Bill 1: Two Cases of Top-Down Constitutional Overreach

Both the European Union's aborted Constitutional Treaty of 2004 and Quebec's Bill 1 (the Québec Constitution Act, 2025, tabled in October 2025) represent ambitious attempts to constitutionalize supranational or national aspirations through elite-driven processes that sidelined broad public buy-in. 

In each case, the resulting documents—or near-documents—failed (or risk failing) to fulfill the core functions of a true constitution: forging societal cohesion, safeguarding rights, constraining governmental excess, and mirroring the polity's diversity. Instead, they highlight a "democratic step backward," as one might aptly put it for Bill 1, where rushed legislative maneuvers prioritize political symbolism over deliberative legitimacy. Below is a breakdown of the parallels and contrasts across key dimensions, drawing on the historical record for the EU and recent developments for Quebec.

1. Adoption Process: Rushed Elitism vs. Deliberative Ideal

• EU Constitutional Treaty: Drafted by a 105-member Convention on the Future of Europe (2001–2002), which included parliamentarians, national officials, and civil society reps, it aimed for inclusivity. Yet, the final text was hammered out in secretive intergovernmental conferences, then ratified via national parliaments or referendums. The "rushed" element came in the post-draft phase: governments pushed for quick adoption to meet EU enlargement deadlines in 2004, framing it as "housekeeping" to streamline the bloated treaty system. This backfired spectacularly—French and Dutch voters rejected it in 2005 referendums (54.7% and 61.6% "No," respectively), exposing the disconnect between Brussels elites and citizens wary of a federalizing super-state.
• Quebec's Bill 1: Tabled by the CAQ government under Premier François Legault as the first bill of the 43rd Legislature's second session, it's being advanced through standard legislative channels without prior public consultations, Indigenous engagement, or multi-party input—despite its sweeping scope. Critics, including opposition parties (e.g., Parti Québécois, Liberals) and civil liberties groups, decry it as a unilateral power grab at the tail end of the CAQ's mandate, timed for electoral appeal ahead of 2026 polls. Hearings are slated for late November 2025, with a clause-by-clause study in spring 2026, but the lack of a constitutional convention or referendum makes it feel like "routine housekeeping" for nationalist posturing, not a foundational pact.
• Parallel: Both bypassed the "broad participation and careful deliberation."  The EU's convention was more participatory on paper, but ratification exposed its top-down flaws; Bill 1 skips even that pretense, risking division rather than unity in a province already polarized on identity issues.

2. Societal Binding: Symbolism Without Shared Demos

• EU: Intended to cultivate a "European demos" via symbols (flag, anthem, "EU Constitution" title) and institutions (e.g., elected Parliament strengthening), it couldn't overcome national allegiances. Low EP election turnout (43% in 2004) and the referendums' backlash underscored a failure to bind diverse societies—East vs. West, rich vs. poor—into a cohesive whole.
• Bill 1: Enshrines Quebec as a "free national State" with "precedence over any inconsistent rule of law" (including federal ones), codifying CAQ priorities like secularism (Bill 21) and language protection (Bill 96). It aims to "affirm the constitutional existence of the Quebec nation," but without dialogue, it alienates anglophones, allophones, Indigenous nations, and federalists, potentially fracturing social cohesion in a multicultural province.
• Parallel: Neither fosters genuine buy-in; the EU's grand vision crumbled under diversity's weight, while Bill 1's nationalist framing risks entrenching "us vs. them" divides, as noted by legal experts like Julius Grey.

3. Rights Protection: Prioritizing Collective Over Individual

• EU: Incorporated the Charter of Fundamental Rights but was criticized for diluting national protections (e.g., via supremacy of EU law). Post-rejection Lisbon Treaty (2009) made the Charter binding, yet perceptions persist of EU courts overriding domestic rights (e.g., German challenges to ECB policies).
• Bill 1: Amends the Quebec Charter of Human Rights and Freedoms to "balance" collective "nation's rights" (language, culture) against individuals, while shielding the notwithstanding clause from justification requirements and barring public funds for challenges to "nation-protecting" laws. This could hobble rights enforcement, especially for minorities, by weakening judicial recourse and reorienting the Human Rights Commission toward "nation's rights."
• Parallel: Both tilt toward collective goals at rights' expense—the EU's integrationist push vs. Quebec's nation-building—eroding trust in supranational/provincial safeguards.

4. Limiting Government Power: Empowering Elites, Not Checks

• EU: Aimed to curb the "democratic deficit" with a stronger Parliament and transparent Council, but entrenched the unelected Commission's legislative monopoly and opaque bargaining, expanding EU powers without proportional accountability.
• Bill 1: Creates a Conseil constitutionnel (Quebec Constitutional Council) for oversight, but asserts parliamentary sovereignty to pass laws immune from federal or judicial vetoes. It eliminates the lieutenant-governor's role (a federal check), claims precedence over the Constitution Act, 1867, and centralizes power in the National Assembly—potentially sparking a constitutional crisis with Ottawa.
• Parallel: Far from limiting power, both entrench elite control: the EU's technocratic sprawl and Bill 1's insulation of CAQ policies from scrutiny, as warned by civil rights groups.

5. Reflecting Diversity: Uniformity Imposed on Pluralism

• EU: Pushed a "one-size-fits-all" model (e.g., eurozone rules) that clashed with Eastern Europe's post-communist realities and Southern debt crises, fueling Euroscepticism.
• Bill 1: Defines Quebec through "founding principles" like French primacy and secularism, but ignores Indigenous perspectives and multicultural fabrics—framed as a "monolithic" vision that could marginalize non-francophone communities.
• Parallel: Both impose a homogenized identity (pan-European or Quebecois nationalism) on diverse populations, breeding resentment rather than representation.

Dimension	EU Constitutional Treaty (2004)	Quebec Bill 1 (2025)
Process	Convention + secretive IGC; referendums derailed it	Unilateral tabling; no prior consultations
Societal Bind	Failed to create "European people"	Risks alienating minorities in "nation" narrative
Rights Protection	Charter binding but supremacy erodes national trust	Weakens individual rights for collective "nation"
Power Limits	Expanded EU without full accountability	Shields legislature from federal/judicial checks
Diversity Reflection	Uniform rules ignored regional variances	Monocultural frame overlooks Indigenous/multicultural input

In essence, the EU's treaty was a cautionary tale of overambition without grassroots legitimacy, leading to its stealth repurposing in Lisbon—a "constitution in disguise" that still grapples with deficits. Bill 1 echoes this as a provocative "law of laws" that, if passed, could provoke federal clashes and erosion of rights without the deliberation needed for endurance. True constitutions, as noted, demand participation to endure; these experiments underscore why shortcuts breed backlash. 

If Bill 1 advances without reform, it may fare no better than its European predecessor—another step back from democratic maturity.

Canada Is Quietly Testing the Limits of Its Constitution — And the Warning Signs Are Already Here

 

Democratic Restraint and Constitutional Culture: Revisiting Insite, Vavilov, and Canada’s Unwritten Governance Framework

Canada’s constitutional order relies not only on formal legal texts but also on interpretive principles, administrative accountability, and unwritten conventions that guide the exercise of state power. Recent political developments—including increased executive discretion, accelerated policymaking, and the framing of governance through urgency rather than evidence—raise questions about whether these constitutional safeguards are being strained.

This article examines three pillars of Canada’s constitutional architecture: (1) evidence-based constraints on state power as articulated in the Insite ruling; (2) the justificatory framework for administrative decision-making reaffirmed in Vavilov; and (3) the normative force of constitutional conventions as articulated in the Patriation Reference and subsequent scholarship. Taken together, these elements illustrate the need for renewed attention to constitutional culture, democratic restraint, and the normative expectations that underlie responsible governance in Canada.

Introduction

Democratic decline rarely begins with a dramatic rupture; instead, it starts with small deviations from institutional norms, often justified as temporary, necessary, or efficient. Canada’s legal tradition has long emphasized that constitutionalism is both legal and cultural: it depends on courts to articulate limits, but also on governments to internalize restraint.

Canada is now facing a moment where expediency increasingly competes with constitutional process. The framing of public policy as inherently urgent—whether regarding public health, security, or digital regulation—has accelerated policymaking in ways that sometimes sidestep deliberation, parliamentary scrutiny, and public justification.

Against this backdrop, three areas of constitutional law serve as guideposts:

• the requirement for evidence-based state action;

• the obligation of reasoned decision-making by administrative bodies;

• and the ongoing relevance of unwritten constitutional principles.

Insite and the Evidentiary Burden on State Power

The Supreme Court’s decision in Canada (Attorney General) v. PHS Community Services Society (Insite) reaffirmed that constitutional rights are not subject to shifting political preferences. The ruling held that when state action jeopardizes life or security of the person under section 7 of the Charter, the state must justify such action through demonstrable evidence—not theoretical risk or ideological position.

The policy relevance of the judgment is not limited to the supervised injection site context. Instead, Insite affirms a broader constitutional rule:

Government may regulate, restrict, or intervene—but only where such action is demonstrably rational, proportionate, and evidence-based.

In an era marked by expanding regulatory frameworks—ranging from public health directives to digital governance—the reasoning in Insite provides a constitutional benchmark resisting the normalization of speculative or paternalistic policymaking.

Vavilov and the Duty to Justify Administrative Power

The 2019 Vavilov decision represents a constitutional recalibration of administrative law. Rather than treating administrative discretion as self-legitimizing, the Court repositioned justification as the core condition of lawful authority.

Administrative decisions must now meet a standard of intelligibility, transparency, and rationality. The decision’s broader democratic meaning is clear:

In a constitutional state, the exercise of public power must be explained—not assumed.

As regulatory systems evolve and governments increasingly rely on delegated authority rather than legislative enactment, Vavilov serves as a safeguard, ensuring that administrative governance remains accountable to constitutional norms rather than convenience.

Constitutional Conventions and the Culture of Restraint

Unlike jurisdictions with a comprehensive written constitution, Canada distributes constitutional authority across legislation, jurisprudence, and unwritten conventions. As articulated in the Patriation Reference, conventions are binding upon political actors even where they lack formal legal enforceability. They are the behavioural norms that prevent lawful action from becoming illegitimate action.

Examples include:

• ministerial responsibility;

• parliamentary supremacy in scrutiny of spending and emergency powers;

• judicial independence;

• respect for opposition and the press as democratic checks.

These conventions form what some scholars call Canada’s constitutional morality—a shared understanding that power must be exercised with restraint, transparency, and accountability.

However, conventions are uniquely vulnerable: they erode through neglect rather than confrontation. Once abandoned, restoration is difficult.

The Present Moment: A Slow Drift or a Constitutional Inflection Point?

Indicators of strain now exist across Canada’s constitutional landscape:

• Emergency-style governance invoked outside traditional emergency thresholds

• Policy justified primarily through appeals to necessity rather than evidence

• Expansion of administrative discretion without proportional increases in transparency

• The tendency to frame dissent—not as participation—but as obstruction

These developments do not yet constitute a constitutional crisis. But they do suggest constitutional drift—subtle, incremental, and largely administrative.

Conclusion

A constitutional democracy is not preserved by law alone. It endures through the ongoing public expectation that power must be justified, rights must be respected, and governance must remain accountable to evidence, process, and restraint.

Insite demands evidence.
Vavilov demands reasoning.
Constitutional conventions demand self-restraint.

Together, they form a tripartite framework for maintaining the legitimacy of public authority in Canada.

As Canada continues to navigate increasingly complex governance challenges, adherence to these principles will determine whether our constitutional culture strengthens—or whether it slowly erodes under the weight of expediency.

SOURCES:

Selected Legal Citations 

1. Canada (Attorney General) v PHS Community Services Society, 2011 SCC 44, [2011] 3 SCR 134.

2. Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65.

3. Reference re Amendment of the Constitution of Canada (Patriation Reference), [1981] 1 SCR 753.

4. Peter W Hogg, Constitutional Law of Canada, loose-leaf (Toronto: Thomson Reuters).

5. Dwight Newman, “Constitutional Conventions and Democratic Legitimacy” (2013) UTLJ.