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On May 18, 2021, the National Post reported on a comment made by Prime Minister Justin Trudeau in regards to Bill 96 being proposed by the Coalition Avenir Québec government.1 The purpose of Bill 96 is meant to protect the French language in Québec. While the Charter of Rights and Freedoms has sections devoted to language in Canada in sections 16 and 23.2 I want to analyze the concept of a province amending the Constitution Act, 1867.3

Section 159 of Bill 96 states:4

“The Constitution Act, 1867 (30 & 31 Victoria, c. 3 (U.K.); 1982, c. 11 (U.K.)) is amended by inserting the following after section 90:

“FUNDAMENTAL CHARACTERISTICS OF QUEBEC

“90Q.1. Quebecers form a nation.

“90Q.2. French shall be the only official language of Quebec. It is also
the common language of the Quebec nation.””

The question before us is “Can a provincial piece of legislation change the Constitution Act, 1867?” The immediate answer is no unless it follows the steps laid out in the Constitution Act, 1982.

What is the Constitution Act, 1867?

The Constitution Act, 1867 was originally a piece of British legislation that was used when it came to governing Canada. That was the status quo until 1982, when Canada’s constitution was patriated from Britain. The patriation was confirmed by the Constitution Act, 1982. 5 When the Constitution Act, 1982 was proclaimed, the Charter Rights and Freedoms was also brought into force. Canada’s constitution composes of the Constitution Act, 1876, the Constitution Act, 1982, and the Charter Rights and Freedoms.

Who does the Constitution Act, 1867 apply to?

The Constitution Act, 1867 lays out the powers for the federal and provincial governments, which government has jurisdiction on matters, elections, and the nitty, gritty details of how both provincial and federal governments operate. There are sections that are specific to provinces. Some sections only apply to the Federal Government. One section might apply to several different provinces while not affecting another province.

Can the Constitution be changed?

Yes, the Constitution can be changed. The prevailing method to change the Constitution can be found in section 38(1) of the Constitution Act, 1982 which states

“An amendment to the Constitution of Canada may be made by proclamation issued by the Governor General under the Great Seal of Canada where so authorized by

(a) resolutions of the Senate and House of Commons; and

(b) resolutions of the legislative assemblies of at least two-thirds of the provinces that have, in the aggregate, according to the then latest general census, at least fifty per cent of the population of all the provinces.”

A resolution according to the House of Commons is a motion.6 What this means is that it takes a majority in the House of Commons, the Senate, and 7 Provinces who represent at least 50% of the population. This is known as that 7 and 50 rule. Yet Quebec isn’t amending the Constitution Act, 1982, they are amending the Constitution Act, 1867 as per Bill 96.

Does the Constitution Act, 1867 say anything about amendments?

No, that’s because the Constitution Act, 1867 was originally a British statute and therefore had no need for an amendment formula. If there was a need to amend the legislation, the British Parliament would pass the amendment. If a specific section or part of a statue does not lay out your answer. You look at the entire statute for the answer. In our case the Constitution Act, 1982 lays out the amendment process in Part V. This is where you can find the 7/50 rule.

So Québec can’t change the Constitution?

It’s complicated. The more you read Part V, you start see exceptions to the 7/50 rule. For example, to change the composition of the Supreme Court can only be made by unanimous consent of all the provinces, the House, and the Senate as outlined in section 41. Section 43 states that any changes to the Constitution that only affect certain provinces, these changes do not require the agreement of other provinces. Section 44 and 45 allows either the Federal or Provincial governments to make changes unilaterally under certain conditions. Section 47(1) allows the House to completely by-pass the Senate’s approval under specific conditions.

Québec can only change their Constitution?

Yes! However the issue gets even more trickier as Québec does not have a formal constitution like Canada. Their Constitution is a mix of laws, traditions, and specific sections in the Canadian Constitution. This is the same in Ontario, were we don’t have a formal constitution. This does make everything a little more trickier as we have several different issues at play.

I’m confused. So can Québec do it? Not do it?

Before, I answer this question, we still have 4 outstanding issues to square away. First, we have the notwithstanding clause. While Bill 96 states at section 159 that “French shall be the only official language of Québec. It is also the common language of the Québec nation.” This implies that there might be some infringement on the right to speak English however the notwithstanding clause only applies to sections 2 to 15 of the Charter of the Rights and Freedoms. This change by Québec does not specifically apply to rights however  it applies to the foundations of the government. We can shelve this issue at the moment.

The second issue is that section 41(c) says that you need to have unanimous consent when it comes to the use of English and French language subject to section 43. Section 43 is the section that allows changes to the Constitution with no need for approval from provinces that are not being affected by changes to the Constitution. For those changes to be made, it still requires approval from the House of Commons and the Senate.

We now know, that since Québec’s change only affects them, there is no need to get either unanimous consent of all the provinces nor can they make the unilateral decision on their own when it comes to the official use of English and French.

The third issue is that there are specific sections and parts in the Constitution Act 1867 that affect specific provinces. In Québec’s case we have sections 71 to 80. Québec can change these sections without the approval of other provinces under the authorization of section 45. However it clearly states that any changes to a provincial constitution are subject to the rules set out in section 41. Reading section 41 points us back to section 43, that once again, both the House of Commons and the Senate must also approve the changes to a provincial constitution when it comes to the use of both English and French.

The final issue before us is that back on November 22, 2006, the House of Commons passed a resolution (motion) stating that Quebec is a nation within Canada. While that fulfils the first requirement found in section 43, that the House of Commons pass a resolution when it comes to a provincial constitution. Yet, the Senate did not pass a resolution that the House of Commons passed, so the issue is dead on that. In law, there is a concept called limitation period. A limitation period is meant to act as a finality on proceedings. Once it expires, you cannot move forward with the proceedings.

As stated earlier in this essay, section 47(1)  says that if the Senate does not pass a resolution within 180 days after the House of Commons has passed the resolution. The House of Commons can pass the resolution again to meet the criteria laid out section 41 and 43. Section 47 does not lay out a limitation period for the House of Commons to revisit the original resolution. The only limitation period that be found in Part V is in section 39, that section only applies to amendments made under section 38. Once again, section 38 does not apply to Québec’s changes.

The original motion was passed almost 15 years ago and there is an argument that passing a resolution that the Senate did not take up after 4 elections and 15 years would not be legal.  The basis of this argument is that since the Constitution Act, 1982 is silent on a limitation period when it comes amendments made outside of section 38, we should use section 39 as a guideline in order to provide some finality to an amendment to the Constitution, 1982. Without a mechanism to conclude some finality to the process, amendments made outside of section 38 would then be valid for eternity while we wait for the process to conclude. There’s also a political issue that it would set a terrible precedent. A future government could go back, find an old resolution, and pass it again to amend the Constitution regardless how much society has changed since the initial resolution.

At the end of the day, Québec’s changes to the Constitution are not legal until it follows the steps laid out in the Constitution Act, 1982. For Québec’s change to their constitution about the official use of English and French to be lawful, it needs the approval of either: both the House of Commons and the Senate or the House of Commons must pass another resolution if the Senate does not take up the issue. With no limitation periods affecting these amendments; Québec, the House of Commons, and the Senate have all the time in the world to properly follow the steps laid out.

Footnotes

  1. Quebec can alter Canadian Constitution to say it’s a nation and French is its official language: Trudeau, https://nationalpost.com/news/quebec-can-modify-part-of-the-canadian-constitution-unilaterally-trudeau, retrieved June 1, 2021
  2. Charter of Rights and Freedoms, https://laws-lois.justice.gc.ca/eng/Const/page-12.html#h-40, retrieved May 26, 2021
  3. Constitution Act, 1867, https://laws-lois.justice.gc.ca/eng/Const/page-1.html, retrieved May 26, 2021
  4. In Act respecting French, the official and common language of Québec, http://m.assnat.qc.ca/en/travaux-parlementaires/projets-loi/projet-loi-96-42-1.html, retrieved May 26, 2021
  5. Constitution Act, 1982, https://laws-lois.justice.gc.ca/eng/Const/page-12.html#h-39, retrieved May 26, 2021
  6. Glossary of Parliament Procedure, https://www.ourcommons.ca/About/Glossary/Index-e.html#LetterR, retrieved May 31, 2021

Post Author: Mitchell Kent

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