How Far Can We Go Before the Constitutional Bargain Is Undermined?

The Quebec Government’s An Act respecting French, the official and common language of Québec (Bill 96), has generated considerable controversy over whether a province is able to make significant constitutional changes to its status and the use of the French and English languages unilaterally. It also raises the question of whether, if enacted and the constitution is amended, it will undermine the very architecture of the 1867 constitutional “deal” that united the original four members of confederation and subsequently the rest of the provinces. The answers to these two interrelated questions could have momentous ramifications for Canada.

I. INTRODUCTION

Bill 96 constitutionalizes the status of Quebec in a way that differentiates it from any other province. It also strengthens the use of French in almost all sectors of Quebec life, with the goal of “affirm[ing] that the only official language of Québec is French [and] that French is the common language of the Québec nation.” (Explanatory note to Bill 96, p.2). Quebec is already officially unilingual and Bill 96’s language provisions (protected by the inclusion in Bill 96 of an override provision [Bill 96, s.200]) continue a trajectory that has increased the dominance of French language use over English. For the first time, however, the status of French in Quebec will be entrenched in the Constitution Act, 1982 (CA, 1982).

Section 159 of Bill 96 constitutionalizing Quebec’s identity and the status of French as the official language of Quebec requires amendments to the Canadian constitution, appearing at p. 4 in the explanatory notes quite simply as follows: “The bill adds provisions to the Constitution Act, 1867 [CA, 1867], concerning the constitution of Québec.” Section 159 reads as follows, in French and English:

159. La Loi constitutionnelle de 1867 (30-31 Vict., ch. 3 (R.-U.); 1982, ch. 11 (R.-U.)) est modifiée par l’insertion, après l’article 90, de ce qui suit :
« CARACTÉRISTIQUES FONDAMENTALES DU QUÉBEC
« 90Q.1. Les Québécoises et les Québécois forment une nation.
« 90Q.2. Le français est la seule langue officielle du Québec. Il est aussi la langue commune de la nation québécoise. ».

CONSTITUTION ACT, 1867
159. 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 placement of the two amendments within Part V of the CA, 1867, “Provincial Constitutions”, by Bill 96 is meant to treat as a fait accompli the answer to whether Quebec can make its desired changes unilaterally, since provincial constitutional amendments require the approval only of the relevant province under section 45 of the CA, 1982.

Bill 96 in part justifies increased emphasis in French and constitutional change by reference to its status as the “the only French-speaking State in North America”, which “shares a long history with the francophone and Acadian communities of Canada”; this “confers a special responsibility on Québec, which intends to play a leading role within La Francophonie (Bill 96, s.1, amending the Preface to Charter of the French language [“the Charter]”).

Three issues (at least) arise from the intention to add sections 90Q.1 and 90Q.2 to Part V of the CA, 1867:

  • which part of the constitutional amending procedure applies?
  • what do these provisions mean?
  • what are the ramifications for the spirit or architecture of the constitutional bargain?
  • Do sections 90Q.1 and/or 90Q.2 amend the Constitution of Canada? Or, to come at it from the opposite end of the issue, do they amend only the Constitution of Quebec?

    II. BILL 96

      A. Proposed Section 90Q.1: Quebecers Form a Nation

    Proposed section 90Q.1 might be said to simply reflect recognition already accorded through Parliamentary legislation. It does not state that “Quebec is a nation”. Rather, it says that “Quebecers form a nation”. In other words, it is not the state that is the nation (“Quebec is a nation”), but the people. This is the case with both languages. However, also in both languages, proposed section 90Q.2 refers to “the Quebec nation”.

    The House of Commons recognized Quebecers as a “nation” in 2006: “That this House recognize that the Québécois form a nation within a united Canada.” (see here).

    Does constitutionalizing this notion do more than legislative recognition of Quebec as a distinct society? Does it do more than “constitutionalize” what is already the case? And what does it mean to “constitutionalize” a provision or circumstance as opposed to legislative recognition? To Quebec, the legislative recognition as a “nation” did little:

    This motion did not create any specific measures favourable to Québec, nor did it translate into actions enabling Québec’s traditional demands to be adequately met. There is no legal consequence from this type of motion, which essentially remains a symbolic political gesture. (see here)

    We must assume then, that moving from a legislative recognition to a constitutionally entrenched status as a “nation” does mean something, that it is intended to have consequences. And that the consequences could only be described as “significant” if they relate to Quebec’s relationship to the federal government and potentially the other partners to the confederation.

    The Cambridge dictionary gives us a commonly recognized definition of “nation” as “a country, especially when thought of as a large group of people living in one area with their own government, language, traditions, etc.” Merriam-Webster defines it as “a territorial division containing a body of people of one or more nationalities and usually characterized by relatively large size and independent status”, but gives as an example “a tribe or federation of tribes (as of American Indians) // the Seminole Nation in Oklahoma” and also refers to “group, aggregation” as “archaic”. While some definitions link “nation” with “government”, not all do: “A stable, historically developed community of people with a territory, economic life, distinctive culture, and language in common” or “An historically constituted, stable community of people, formed on the basis of a common language, territory, economic life, ethnicity and/or psychological make-up manifested in a common culture” (for both, see here). Indigenous nations in the geographical region of Canada illustrate these definitions and the 2018 Canadian government document Principles Respecting the Government of Canada’s Relationship with Indigenous Peoples speaks of a “nation-to-nation” relationship between Canada and Indigenous nations (p.3).

    The description of Quebec as a “distinct society” goes back some 60 years at least, although the concept can be traced to before confederation (see a 1995 Canadian government paper, “Distinct Society: Origins, Interpretations, Implications” [“Distinct Society”]). Whether referred to as a “distinct society” or as “a nation”, the conception of Quebec, both internally and externally, has been that it has a distinctive status as a province with a different dominant language, history, culture, legal system and religious heritage from other provinces. As one Quebec commentator has written,

    Quebec’s differences are plain for all to see on so many levels. It has its own history, language, culture, civil law, business elite, immigration policy, school system, movie industry, foreign policy and quasi-diplomatic representation abroad, Canada’s largest linguistic minority and, of course, secularism legislation. It prefers interculturalism, which encourages integration of newcomers, to segregation-inducing multiculturalism. (Lise Ravary, “Quebec is more than just a ‘distinct society‘”

    It is notable that for many in Quebec, “distinct society’ is inadequate to describe its status; Quebec’s status can be described only as a “nation”. In May 2015, the Quebec government defined “nation” as “not limited to Francophones; they include all individuals residing in Québec” (see “Recognition of the Quebec Nation“). This document states explicitly that “only constitutional entrenchment would ensure the sustainability of the desired legal consequences”.

    There is no question that Quebec has a distinct identity. And it is also the case that Quebec has exhibited a strenuous willingness to take measures and to make arrangements with the federal government to maintain that distinctiveness as a contemporary identity, compared to other provinces and that other jurisdictions have accepted these developments (see examples in Andrew Coyne’s Globe and Mail column here).

    Other provinces may identify characteristics that help give them a reason to distinguish themselves from each other, but in broad terms, they share a similar identity. For example, settlers to one province or another may have come from different parts of the world, but they now share more in common in this respect than not (the use of the English language, for example).

      B. Proposed Section 90Q.2: French shall be the only official language of Quebec.

    Section 133 of Bill 96 amends the Preamble to the Quebec Charter of human rights and freedoms to add the following: “Whereas French is the only official language of Québec and the common language of the Québec nation and the language of integration into the Québec nation;” and to be clear about the supremacy of French, the Charter of human rights and freedoms is to read, “Moreover, the Charter [of human rights and freedoms] shall not be so interpreted as to suppress or limit the enjoyment or exercise of any right intended to protect the French language conferred by the Charter of the French language” (Bill 96, s.136).

    One might argue that proposed section 90Q.2 does not as a legislative matter change the status of French in the province. For example, section 1 of the Charter of the French Language already states, “French is the official language of Québec.” Section 2 of Bill 96 would add to that statement this: “Only French has that status.” The significance of French is indicated by the following amendments in Bill 96 to the Charter of the French Language:

    “88.9. As the common language of the Québec nation, French is, among other things,
    (1) the host language and the language of integration that enables immigrants to interact, thrive within Québec society and participate in its development;
    (2) the language of intercultural communication that enables all Quebecers to participate in public life in Québec society; and
    (3) the language that makes it possible to embrace and contribute to the Québec nation’s distinct culture.

    “88.10. Any person domiciled in Québec who is unable to communicate in French is invited, as far as he is able, to learn French in order to use it as the common language to be able to interact, thrive within Québec society and participate in its development.

    Proposed section 90Q.2 “merely” extends and provides constitutional status to the evolution of French as the dominant language of Quebec, making it clearer than ever that English is a minority language. French and English are given equal constitutional status in limited circumstances in three provinces (Quebec, Manitoba and New Brunswick) by section 133 of the CA, 1867, sections 16 to 21 and 23 of the Canadian Charter of Rights and Freedoms (“Canadian Charter“) and section 23 of the Manitoba Act.

    Section 133 of the CA, 1867 allows someone to use either English or French in debates in the Canadian Parliament and in the Quebec National Assembly and in federal or Quebec courts and both languages are to be used in records of proceedings in both jurisdictions. Sections 16 to 20 of the Canadian Charter guarantees French and English language rights federally and in New Brunswick; Quebec is not referred to, but section 21 states, “Nothing in sections 16 to 20 abrogates or derogates from any right, privilege or obligation with respect to the English and French languages, or either of them, that exists or is continued by virtue of any other provision of the Constitution of Canada”, including section 133 of the CA, 1867. Bilingualism in New Brunswick includes not merely of language, but “linguistic communities” with “the right to distinct educational institutions and such distinct cultural institutions as are necessary for the preservation and promotion of those communities” (s.16.1(1), Canadian Charter). The use of the two languages in Manitoba is addressed in section 23 of the Manitoba Act, which is considered part of the constitution.) Section 23 of the Canadian Charter guarantees minority language rights in all provinces.

    In short, whatever Quebec wants to do with respect to the use of French and English cannot contravene the language provisions in the CA, 1867 or section 23 of the Canadian Charter. It is apparently not the intention to do so relation to section 133 of the CA, 1867; section 5 of Bill 96 amends the Charter of the French Language to provide, “Regulations and other similar acts to which section 133 of the Constitution Act, 1867 does not apply, such as municipal by-laws, shall be drawn up, adopted and published exclusively in French” (emphasis added).

    Bill 96 focuses on the use of English and French in post-secondary institutions; for example, it limits the number of students in English-language colleges, which are identified (Bill 96, s.179). In relation to primary school, it does not attempt to implement measures contrary to section 23 of the Canadian Charter, but it does state that “[i]nstitutions providing primary, secondary or college instruction in English, … must, … take reasonable means to ensure that persons domiciled in Québec, while they receive such instruction, are provided with French language instruction.” It also requires those attending English-language schools to learn sufficient French “to have acquired sufficient skills to use French as the common language in order to be able to interact, thrive within Québec society and participate in its development.” (Bill 96, s.62) Do these provisions indirectly impact section 23 of the Canadian Charter?

    The centrality of language to Quebec’s identity is clear. Language is both a reflection of and contributes to the maintenance of culture as shown by the legislative recognition of languages in the territories. Yukon’s official languages are English and French; there is also a more limited legislative right for people to use Aboriginal languages in legislative debates (Yukon Languages Act). The other two territories have gone further. The official languages of Nunavut are Inuit (Inuktitut and Inuinnaqtun), French and English (Nunavut Official Language Act, s.3). There are 11 official languages in the NWT, nine of which are Indigenous (NWT Official Languages Act [“the Act”], s.4), although it should be noted that the use of English and French is more “equal” than the other languages (see, for example, ss.6 and 7 of the Act). The preambles of both the NWT Official Languages Act and the Nunavut Official Languages Act refer to their Indigenous peoples and languages as constituting a “distinct society”. However, the territories have no constitutional status and there is no constitutional recognition of these official languages.

    III. THE CONSTITUTIONAL AMENDING PROCEDURES

      A. Introduction

    Amendments to the Constitution must conform to the procedures found in Part V of the CA, 1982 (sections 38 to 48), although the particular procedure is determined by the nature of the proposed amendment and the jurisdiction(s) affected by it. Generally, the purpose of the procedures is to restrict the ability of the federal government to amend the Constitution compared to the scope it enjoyed prior to the implementation of the CA, 1982 and to ensure that the provinces are part of the amending process and, indeed, in some circumstances are able to exert a veto. (See Reference re Senate Reform, para. 31 (“Senate Reform Reference“). Parliament’s ability to amend the constitution unilaterally has become very limited, with a narrow interpretation of section 44, CA, 1982 (“Subject to sections 41 and 42, Parliament may exclusively make laws amending the Constitution of Canada in relation to the executive government of Canada or the Senate and House of Commons.”)

    The Supreme Court of Canada has said that Part V, CA 1982 (the amending provisions)

    consecrate[s] the principle of “the constitutional equality of provinces as equal partners in Confederation” … In principle, no province stands above the others with respect to constitutional amendments, and all provinces are given the same rights in the process of amendment. The result is an amending formula designed to foster dialogue between the federal government and the provinces on matters of constitutional change, and to protect Canada’s constitutional status quo until such time as reforms are agreed upon. (Senate Reform Reference, para. 31, citation omitted)

    Quebec has structured its changes to the constitution as amendments to section 45 and there is support for its position (see below). The views of other commentators range from the need to apply the general amending formula that requires the agreement of the legislative assemblies of other provinces constituting a particular portion of the Canadian population (for example, Sujit Choudry, quoted in National Post) to the more commonly held view that only Parliament, in addition to Quebec, would have to approve the amendments (see, for example, Errol Mendes and Emmett Macfarlane, quoted in The Globe and Mail).

    Bill 96 assumes that Quebec can amend the constitution unilaterally to constitutionalize Quebec’s status as a nation and to make French its official and common language through section 45 of the CA, 1982 and I begin a discussion of the amending procedures there.

      B Amending Sections
        i. Section 45

    Section 45 of the CA, 1982 reads as follows:

    45 Subject to section 41, the legislature of each province may exclusively make laws amending the constitution of the province.

    (I address section 41 of the CA, 1982 below; it requires unanimous approval of Parliament and the provinces for listed matters, including “the use of the English or the French language”, but it in turn must be read in light of section 43 of the CA, 1982, which requires the approval of Parliament and the affected province(s) in relation to “any amendment to any provision that relates to the use of the English or the French language within a province”.)

    Patrick Taillon, who, according to the National Post, first wrote about the provincial constitution approach, believes section 45 applies to the Bill 96 constitutional amendments. As he explains, his approach addresses a particular “narrow” point, rather than a wholesale effort attempted in, for example, the Meech Lake Accord. (See here.) Professor Taillon’s argument was discussed in Le Devoir on January 18, 2021:

    The professor of public law at Laval University invites Quebec legislators to remedy the situation by drawing on “a very powerful symbolic, political and legal vocabulary” and by inserting expressions corresponding to “real Quebec” such as “State member”, “shared sovereignty” or “people of Quebec” in the Canadian Constitution.

    To add its words to the Constitution, the Quebec Parliament need only pass a law explicitly modifying the text of the Constitution Act of 1867, according to Professor Taillon. No need to wait for the constitutional fruit to ripen and to participate in painful constitutional negotiations if it legislates within its “exclusive competence”, he maintains, while referring to article 45 of the Constitution Act of 1982. This stipulates that “a legislature has exclusive competence to modify the constitution of its province”, except to review the office of the lieutenant-governor or even the use of French or English, among other things. (Google translation from French)

    Furthermore,

    From the moment Quebec would register these changes directly in the text of the Constitution of 1867, these provisions should be considered “supralegislative”, which would place them above ordinary laws, argues Patrick Taillon. Quebec could then “maintain that the constitutive rules of its institutions are at the top of the hierarchy of norms – on a par with the other rules of the Canadian Constitution – and that they therefore escape the control of conformity by the federal judges”. (Le Devoir, Google translation from French)

    According to Le Devoir, Taillon believes that Quebec could change its nomenclature and therefore its status from “a province of the dominion” to “a state of the federation”.

    Prime Minister Justice Trudeau has stated that lawyers with Justice Canada believe that Quebec can in fact use section 45 of the CA, 1982 to amend the Constitution to achieve the amendments in section 159 of Bill 96. According to The Globe and Mail,

    Mr. Trudeau said Tuesday [May 18th] that the province can amend part of the Constitution to underscore that it is a nation and that its official language is French – adding that both things have already been recognized by the federal government.

    “In regards to the Constitution, our initial analysis, in terms of the Justice Department, has highlighted that it is perfectly legitimate for a province to modify the section of the Constitution that applies specifically to them,” Mr. Trudeau said when pressed on the issue at a news conference. (See here)

    Former Liberal leader Stéphane Dion, a strong federalist, also supports this approach, although he adds the caveat that no other provision of the Constitution, including anglophone rights, be impacted (see National Post story here).

    And here we have the crux of the matter: whether there is potential for these ostensibly Quebec-limited provisions to have an effect on other constitutional provisions or the constitutional framework more broadly. The answer to this question determines which part of the amending formula applies.

    Section 45 is intended to provide an amending process for those matters that fall within the “constitution of the province”, although it is subject to section 41 and section 41’s list of matters that go beyond any particular province and affect Canada and the constitutional framework of Canada as a whole; section 41 requires unanimous approval for amendments to these matters.

    Section 45 is a successor to section 92(1) of the CA, 1867, now repealed by the CA, 1982. It read as follows: “The Amendment from Time to Time, notwithstanding anything in this Act, of the Constitution of the Province, except as regards the Office of Lieutenant Governor.” (On the application of Manitoba’s passing unilingual English official language legislation under section 92(1), contrary to section 23 of the Manitoba Act, and the history of section 45 of the CA, 1982, see Margaret A. Banks, “Defining ‘Constitution of the province’ – The Crux of the Manitoba Language Controversy”.) Section 45 does not refer only to the Office of the Lieutenant Governor as did section 92(1) of the CA, 1867; that would have been easily done, but it refers to section 41 without qualification.

    Understanding section 41 of the CA, 1982 and its limitation on section 45 of the CA, 1982 requires answering two questions: what class of subjects falls within “Provincial Constitutions” and how does the reference to language in section 41 relate to other matters under section 41?

    The relevant class of subjects under “Provincial Constitutions” relate to the governing structures of the provinces: the executive, the legislative power and the application to the provinces of matters falling within federal jurisdiction (“Appropriation and Tax Bills, the Recommendation of Money Votes, the Assent to Bills, the Disallowance of Acts, and the Signification of Pleasure on Bills reserved”).

    Although under now-repealed section 92(1) CA, 1867, the provinces could originally amend anything within their own constitutions, except in relation to the lieutenant governor, section 45 is subject to the broader list in section 41 of the CA, 1982. In the Senate Reform Reference, the Supreme Court of Canada articulated the scope of section 92(1) as “allow[ing] the provincial legislatures to enact amendments only in relation to ‘the operation of an organ of the government of the province, provided it is not otherwise entrenched as being indivisibly related to the implementation of the federal principle or to a fundamental term or condition of the union'” (Senate Reform Reference, para. 47, citation omitted). The Court continued, speaking of the analogous provisions giving unilateral authority to Parliament (section 44, also subject to sections 41 and 42) and to the provinces (section 45, subject to section 41).

    As the successors to those provisions [sections 91(1) and 92(1) CA, 1867], ss. 44 and 45 [CA, 1982] give the federal and provincial legislatures the ability to unilaterally amend certain aspects of the Constitution that relate to their own level of government, but which do not engage the interests of the other level of government. This limited ability to make changes unilaterally reflects the principle that Parliament and the provinces are equal stakeholders in the Canadian constitutional design. Neither level of government acting alone can alter the fundamental nature and role of the institutions provided for in the Constitution. This said, those institutions can be maintained and even changed to some extent under ss. 44 and 45, provided that their fundamental nature and role remain intact. (Senate Reform Reference, para. 48)

    The Supreme Court’s decision in Re Manitoba Language Rights found that the English-only Official Language Act was ultra vires. It had not therefore been open to Manitoba to rely on section 92(1) of the CA, 1867 to ignore the bilingual requirement in section 23 of the Manitoba Act. The Supreme Court also considered the meaning of “Provincial Constitutions” in Att. Gen. of Quebec v. Blaikie et al., but without coming to a definitive conclusion about whether the list of matters is exhaustive. These cases dealt with explicit constitutional provisions, section 23 of the Manitoba Act and section 133 of the CA, 1867, which cannot be considered part of the “Provincial Constitutions”. A province cannot unilaterally change the operation of section 133 under section 45, but Bill 96 does not seek to do that. It seeks to denote as a constitutional matter the use of French in Quebec.

        ii. Section 38

    Section 38 of the CA, 1982 sets out the general amending formula: it requires resolutions of the Senate and House of Commons; and “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.” (Note there are other provisions relevant to this procedure, as well as to sections 41, 42 and 43, such as those concerning revocation of approval and amendment without Senate approval.)

    It is helpful to appreciate the relationship of the other procedures to section 38, which are described by the Supreme Court of Canada as “exceptions to the general rule” (Senate Reform Reference, para. 36). Section 42 makes it clear that certain matters must be amended in accordance with section 38(1) (the other subsections of section 38 do not apply). The list does not apply to the amendments under section 159 of Bill 96.

        iii. Sections 41 and 43

    Section 41 states as follows:

    41 An amendment to the Constitution of Canada in relation to the following matters may be made by proclamation issued by the Governor General under the Great Seal of Canada only where authorized by resolutions of the Senate and House of Commons and of the legislative assembly of each province:

    (c) subject to section 43, the use of the English or the French language;
    ….

    Other matters under section 41 refer to matters that affect Canada as a whole, as well as the relationship of the provinces to each other (such as “the office of the Queen, the Governor General and the Lieutenant Governor of a province”, the number of members in the House of Commons a province is entitled to relative to the number of senators, the composition of the Supreme Court and an amendment to Part V of the CA, 1982, the amending procedures themselves). All these matters require unanimous consent, of Parliament and all the provinces. They have such significance that the requirement is more extensive than the general amending formula. Applying to the governance structure of Canada and requiring unanimity of the confederation partners, section 41 addresses foundational governance structures and the bargain leading to confederation. From a different angle, section 41 permits every jurisdiction to exercise a veto.

    For section 41 to apply to the amendments under section 159 of Bill 96, they must clearly fall within the list under section 41 and be of such significance that they require the approval of all jurisdictions. Section 90Q.1, declaring Quebecers a “nation” might be thought as highly significant because of its ramifications; however, it does not appear to fall under the matters listed under section 41, however defined. Section 90.2, however, is about language; whether it falls under section 41 depends on the impact of section 43’s reference to language, since section 41(c) is subject to amending provision section 43.

    Section 43 states as follows:

    43 An amendment to the Constitution of Canada in relation to any provision that applies to one or more, but not all, provinces, including

    (b) any amendment to any provision that relates to the use of the English or the French language within a province,

    may be made by proclamation issued by the Governor General under the Great Seal of Canada only where so authorized by resolutions of the Senate and House of Commons and of the legislative assembly of each province to which the amendment applies.

    The only other matter included under section 43 is “any alteration to boundaries between provinces”, obviously not at issue here. However, section 43 is not limited to those two matters; it contemplates amendments to “special arrangements” in the Constitution that affect only one or more, but not all, provinces (Senate Reform Reference, para. 32). Hence section 43’s application to Newfoundland’s and Quebec’s changes to section 93 of the CA, 1867. In both cases, the amendments, even though affecting only the individual province, required the approval of Parliament because the change was to the constitution of Canada; thus the amendments were made under section 43 of the amending formula. This was the case even though they were not of the type of matter listed under section 43; however, section 43 uses the term “including” and thus the two matters identified are not exhaustive. Even though these amendments affected only one province, section 45 did not apply: its list is exhaustive.

    In 1997, the Constitution Amendment, 1997 (Quebec) provided that the subsections to section 93 CA, 1867 no longer applied to Quebec, removing the obligation to support denominational schools. Also in 1997, section 17 of the Terms of Union of Newfoundland and Canada, the schedule to the Newfoundland Act, 1949, which like the Manitoba Act, 1870, has constitutional status, was amended to eliminate the requirement for denominational schools. (For the Constitution Amendment, 1997, (Québec), see here, and for the Constitution Amendment Proclamation, 1997 (Newfoundland Act), see here.)

    Section 133 of the CA, 1867 applies only to Parliament and Quebec, while section 16.1 of the Canadian Charter applies only to New Brunswick; amendments to these provisions would follow the procedure under section 43. Section 23 of the Canadian Charter applies to Canadian citizens of all provinces and thus would presumably require the application of section 41.

    The amendment relating to the French language (section 90Q.2 of Bill 96) illustrates the difficulty of disentangling the relationship between sections 41 and 43 of the CA, 1982. As the Supreme Court has said about section 43, ” The determination of its scope and of the effects of its interaction with other provisions of Part V presents significant conceptual difficulties” (Senate Reform Reference, para. 44).

    As far as their reference to French and English are concerned, it is important to note the difference in wording between sections 41 and 43. Section 41, which applies to “the use of the English or the French language” is subject to section 43 (emphasis added); section 41 requires unanimous consent of the provinces, as well as Parliament. Section 43 applies to “any amendment to any provision that relates to the use of the English or the French language within a province” when the amendment affects one or more but not all provinces (emphasis added). Note that section 41 refers to “the use of” with no jurisdictional designation and section 43 refers to “any provision that relates to the use of the English or the French language within a province” (emphasis added), yet it acknowledges that Parliamentary approval is required).

    Commentators have suggested that section 43 of the CA, 1982 would apply here, requiring Parliament’s approval, but not the approval of any province other than the legislative assembly of Quebec itself.

    IV. APPLICATION TO PROPOSED AMENDMENTS

      A. Section 90Q.1

    While it is the case that Quebec has been recognized as a “distinct society” and that Quebecers “form a nation within a unified Canada” by Parliament and that there are consequences flowing from that, acknowledging that Quebec has a different constitutional status has the potential for greater ramifications. It distorts the equal partnership on which confederation was based and potentially leads the way to other provinces amending the constitution in ways unknown. The potential ramifications go far beyond “the constitution of the province” and thus falls outside section 45. Its vulnerability to the general formula under section 38 depends on whether having one province with this heightened constitutional recognition effectively redesigns the basic jurisdictional structure of the confederation if one sees confederation as the union of equal partners (at least as far as the provinces are concerned). However, Quebec views it as a “pact between two peoples, rather than on just an agreement of the provinces that formed the country in 1867 (“Distinct Society”).

      B. Section 90Q.2

    The section 90Q.2 amendment relates to a matter explicitly addressed in the amending procedures. The intent to amend the constitution in relation to French also appears to invoke section 41 of the CA, 1982: it lists certain matters that may be the subject of an amendment only where authorized by resolutions of the Senate and House of Commons and of the legislative assembly of each province (emphasis added); among these matters is “the use of the English or the French language;” however, this is subject to section 43, which, as noted above, applies to “any amendment to any provision that relates to the use of the English or the French language within a province (emphasis added).”

    Proposed amendment section 90Q.2 relates to the use of French (and as a consequence the use of English) (section 41). Section 41 requires the approval of Parliament and the legislature of each province. However, despite the wording, it is questionable whether this is the right conclusion. If recognition of Quebecers as a nation (and of Quebec as a nation) does not invoke the unanimity procedure, it is hard to see that constitutionalizing French as an official language does. Yet although section 90Q.2 is limited to “the use of the English or the French language within a province”, does not amend any other provision in the constitution (this seems to be the import of section 43). It does amend the Constitution, but not the language provisions.

    It is therefore questionable whether section 43 of the CA, 1982 applies: it refers to “any amendment to any provision that relates to the use of the English or the French language within a province”. Section 90.Q2 does not affect section 133 of the CA, 1867 or section 23 of the Canadian Charter, which are protected by sections 7 and 73 of the Charter of the French Language, although I note that section 73 appears to be worded more stringently than is section 23 of the Canadian Charter. However, section 90.Q2 does relate to “the use of the English or the French language”, which under section 41 would require unanimous consent of the provinces were it not for the internal qualification to section 41, which makes it subject to section 43.

    Proposed amendment section 90Q.2 does not directly amend section 133 or any of the other explicit language provisions in the constitution. (I note that Bill 96 has requirements to learn French in the English language primary and secondary educational systems; it might therefore be said to affect section 23 of the Canadian Charter implicitly. Section 23 of the Canadian Charter is not subject to the override provision under section 33.)

    V. CONCLUSION

    Quebec needs to treat its amendments as amendments to Part V of the CA, 1867 because otherwise it would need (at least) to follow the process under section 43 of the CA, 1982, which deals with amendments to the Constitution of Canada requiring not only the National Assembly of Quebec’s approval, but also the approval of the House of Commons and the Senate. As far as proposed amendment 90Q.1 is concerned, other amending procedures might come into play, if declaring Quebec a nation is seen as affecting other partners to confederation. Section 90Q.1 goes to the history and nature of the constitutional bargain more broadly. It must be interpreted in light of the underlying principles of the constitution and of the confederation bargain. (See the Secession Reference and Senate Reform Reference.)

    The arrangements in what became confederation were the culmination of a series of deals, affecting the Province of Canada (ultimately Quebec and Ontario), New Brunswick and Nova Scotia, which were reflected in the then British North America Act, 1867, now the Constitution Act, 1867. As a result of unreconcilable internal difficulties, the Province of Canada was separated into Canada West (to become Ontario) and Canada East (Quebec), each with its own legislature, identity, educational system and system of private laws. The bargain is reflected not only in provisions characterizing the entire country, but also the “special arrangements” meeting particular jurisdictional needs.

    Both at the time and definitely subsequently, there was and has been dissatisfaction with the confederation across the country. Although the grand bargain was initially successful enough to survive and, with close calls otherwise, continues to be, Quebec as an entity has never been enthusiastic about joining; rather the disadvantages of not creating the confederation were greater than the advantages of joining it, especially with provisions that reflected its distinctiveness and ability to control local matters. Quebec has never approved the Constitution Act, 1982, although its actions have accepted it (the amendment to change the educational system in 1997, the use of the override under section 33 of the Canadian Charter, particularly in relation to Bill 21 and French language legislation and now the proposed amendments in Bill 96).

    It is hardly novel to say that Bill 96 reflects the passionate desire of Quebec to retain and enhance its distinctiveness (its willingness to enact Bill 21 with the override under section 33 of the Canadian Charter does the same) and it is also hardly novel to say that nothing to date has been able to satisfy that. Section 159 of Bill 96 may accomplish that, but Quebec does not exist in isolation; regardless of the wishes of many, it exists in a Canada the constitution of which applies to more than Quebec (even if not satisfactorily to Quebec). Whatever legislative provisions evidence that distinctiveness, constitutionalizing them potentially affects Canada as a whole, even though that position would be rejected by Quebec.

    Quebec is not the only dissatisfied member of the confederation and no doubt other provinces would welcome an opportunity to constitutionalize their “distinctive” nature. Are any of those claims analogous to the significance of language to cultural identity? Do they rise to denoting the identification of other provinces as “nations”. These potential claims do not currently have the legislative recognition that Quebec’s claim does, but this would not likely dissuade a province determined to seek more power under the CA, 1867 or CA, 1982.

    And if Quebec is constitutionally recognized as a nation, does that not enhance the Indigenous claims to be recognized as “nations” in the Constitution and to be included in the Constitution? Perhaps other jurisdictions would recognize that none of them require such a dramatic step, but there is no guarantee they would not. And there is no guarantee that Quebec would not make claims that gain greater robustness by being backed by constitutional recognition, including a nation to nation relationship with the federal government. The only issue here is which process under the amending procedures do or should apply, not whether Quebec can make these claims: are they claims that affect Quebec only (section 45, requiring only the approval of Quebec’s National Assembly)? claims that go to the nature of the confederation or the relationship status among the provinces (section 38, requiring resolutions of the two Houses of Parliament and two-thirds of the provinces with at least fifty per cent of the population of all the provinces or section 43, requiring approval by Parliament and the National Assembly of Quebec)? or claims that involve a renegotiation between two founding peoples (section 38 or section 43)?

    The determination of the “proper” amending procedure depends on how confederation is characterized and the extent to which other partners should be involved in a process that could have momentous ramifications for Canada. The answer to the question that forms the title to this post, “How Far Can We Go Before the Constitutional Bargain is Undermined?”, relies not only on the identity of Quebec, but also on the identity of Canada.

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