What is a provincial constitution and how do we amend it? The question seems deceptively simple, but like so many things in Canadian politics, it’s a complicated issue that we’ve done a good job of ignoring. Last week, our ability to kick the constitutional can down the road came to an end. With Quebec’s tabling of Bill 96, which proposes to add clauses to the Constitution of Canada saying Quebec is a nation and that its official and common language is French, the question of provincial constitutions has taken centre stage. How we proceed from here will have major consequences not just for Quebec’s constitutional recognition, but for how we understand the Canadian Constitution and its amendment procedure under Part V of the Constitution Act, 1982.
Quebec’s action is unprecedented, and experts are divided on whether the Canadian Constitution can be amended in this manner. Though a number of scholars have stated Quebec’s proposal cannot be enacted unilaterally, an initial analysis by the Department of Justice has apparently given Quebec the green light. The issue needs greater study, most importantly by a parliamentary committee, to clarify whether and how any province can take comparable action in the future.
Constitutions are rarely singular documents, but for provincial constitutions, this is especially the case. Provincial constitutions are found in multiple sources, including portions of the Constitution of Canada, ordinary provincial legislation, common law and the unwritten constitutional conventions typical of Westminster-style governing. Arguably most fundamental to provincial constitutions is their unwritten nature. Provincial constitutions are modeled after the unwritten constitutions of the British model, making much of what is included in a provincial constitution unentrenched and thus hard to identify. Put together, it is difficult to confidently compile an exhaustive list of the components of a provincial constitution.
The amending procedure for provincial constitutions under section 45 of the Constitution Act, 1982 states: “Subject to section 41, the legislature of each province may exclusively make laws amending the constitution of the province.” This is not particularly helpful in clarifying what a provincial constitution is. Canada has multiple constitutional-amending procedures under Part V, which apply to different subjects and require different thresholds for approval. Importantly, all multilateral amending procedures (sections 38, 41, 43) proceed by way of authorizing resolutions of the federal houses of Parliament and the applicable provincial legislative assemblies, followed by the proclamation of an amendment to the Constitution of Canada. By contrast, amendments enacted unilaterally by Parliament to the Constitution of Canada (section 44) or by a provincial legislature to a provincial constitution (section 45) may be done by simple statutory enactments.
Like section 45, section 44 has been a relatively quiet amendment procedure, though it came under close scrutiny when Conservative Prime Minister Stephen Harper proposed using it to unilaterally reform the Senate. These efforts were eventually thwarted when the Supreme Court ruled that of all the reforms proposed, section 44 could be used only to remove property qualifications for senators.
Because an amendment to a province’s constitution proceeds by way of ordinary provincial statute, an institutionalized cue that identifies the process or the content as a constitutional amendment is not required. Thus, not only do provinces have constitutions that are difficult to identify, but their amendment procedure is also designed to go unnoticed. In a forthcoming article in The Manitoba Law Journal, I refer to this process as “amendment by stealth.”
How does previous use of section 45 help us to navigate the current question of whether Quebec has the authority to unilaterally amend the Constitution of Canada? In short, it doesn’t. Because amendment to a provincial constitution does not need to be identified as proceeding under section 45, a definitive list of amendments to provincial constitutions is not possible. Nonetheless, there have been at least two occasions when a province has explicitly referenced section 45 in a bill, clearly signaling an amendment to its provincial constitution: Nova Scotia in 1986 and Alberta in 1990. Both of these bills dealt with clear constitutional issues – the amendment of the House of Assembly Act in Nova Scotia and the development of a new land-based governance model for Métis settlements in Alberta. However, unlike what is now proposed by Quebec, neither bill looked to modify or insert clauses into the Constitution of Canada. The limited past practice we are able to identify confirms what most experts likely already assumed: that the use of section 45 proposed by Quebec in Bill 96 is unprecedented.
Considering that there is relatively little by way of identifiable past practice to guide our deliberations, it seems surprising that Prime Minister Justin Trudeau, as well as other federal party leaders, were so quick to provide initial support to Quebec’s proposal. It is already clear that constitutional scholars are divided on what amendment procedures are required for Quebec to achieve its constitutional objectives (see Emmett Macfarlane, Stéphanie Chouinard, Sujit Choudhry and Patrick Taillon), thus leaving opportunity for politics to fill the space. These early reactions by elected officials underline the already well-known fact that constitutional amendment is an inherently political process. The risk, of course, is that short-term political ambitions, like the Liberal Party’s performance in Quebec in a not-so-distant federal election, may have long-term, potentially negative consequences for constitutional amendment in Canada.
At minimum, and particularly because the federal government is supportive of the content of Quebec’s proposal, a full parliamentary study of the provincial unilateral amendment procedure (section 45) for amending the Constitution of Canada should be undertaken. While the Constitution of Canada should not be so difficult to amend that it is frozen in amber, it is critical that we proceed with careful, public consideration of what amending procedure is required here. Anything less would service politics to the detriment of the Canadian Constitution.