The Quebec government has introduced Bill 96 in the National Assembly, part of its major overhaul of French language policy. Section 159 of the bill proposes to insert two clauses into the Constitution Act, 1867. At the end of the “Provincial Constitutions” section of the Act would appear the following:
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.
These provisions, in my view, cannot be inserted into the Canadian Constitution by Quebec unilaterally. They run afoul of the Constitution’s amending formula and are thus ultra vires (beyond the authority of) the Quebec National Assembly.
The Quebec government appears to assert its authority to insert the clauses on the basis of section 45 of the amending formula (Part V of the Constitution Act, 1982) which provides that “each province may exclusively make laws amending the constitution of the province.” Indeed, under the pre-1982 equivalent of this power, Quebec was able to abolish the upper house of the legislature, the Legislative Council, rendering the many provisions referring to it in the 1867 Act “spent” (expired) as a result.
Why then is the attempt to insert these two new provisions beyond Quebec’s power? First, recognition of Quebecers as a nation in the Canadian Constitution extends beyond the traditional bounds of the “provincial constitution” for the purposes of section 45 of the amending formula. In fact, the question of inserting the recognition of Quebec as a distinct society or nation has emerged in past ‘mega-constitutional’ negotiations, most predominately the failed Meech Lake and Charlottetown Accords of the 1980s and 1990s. In those contexts, the proposed amendments were part of broader constitutional reform packages that required the unanimous agreement of the federal House of Commons and Senate and all ten provincial legislatures. Constitutional recognition of Quebec’s “unique status” was a core component of those packages, and one of the most controversial.
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On its own, constitutionally entrenching recognition of Quebecers as a nation is unlikely to require such unanimity, as unanimity is limited to only a few specific items under section 41 of the amending formula. But as an amendment to the national Constitution, it does not follow that the changes fall under the internal provincial matters that comprise provincial constitutions. The provision would confer new, unprecedented recognition of a social fact by the Canadian Constitution. It is thus not an amendment to the internal machinery of the Quebec state, like electoral reform or changes the provincial legislature would be – things that clearly fall within the scope of section 45’s provincial amending procedure. Instead, it imposes recognition of a contested fact on the rest of the federation. It is thus clear, in my view, that the general amending procedure, requiring the approval of the federal House and Senate and at least seven provinces representing at least fifty percent of the population, is needed.
The second provision, concerning the status of French in Quebec, is in some ways more straightforward and in others more complex. Section 43 of the amending formula provides that “any amendment to any provision that relates to the use of the English or the French language within a province” requires approval of the federal House and Senate and of the legislative assembly in each province to which the amendment applies. Indeed, the inclusion of Charter of Rights provisions guaranteeing the equal status of French and English communities in New Brunswick were brought in via this bilateral amending procedure. It is thus quite clear Quebec cannot unilaterally insert a new clause concerning the status of the French language in Quebec.
It is worth noting that the language clause might also conflict, at least in part, with section 133 of the Constitution Act, 1867, which requires the use of English and French in Quebec’s provincial legislature, its acts and written materials, and in Quebec’s courts. As constitutional lawyer Lyle Skinner reminded me on Twitter, the Supreme Court ruled in 1979 that Quebec could not make unilateral changes affecting this provision in A.G. Quebec v. Blaikie et al. Quebec cannot unilaterally insert a broad provision that might run up against existing language guarantees. Moreover, if such a clause were inserted it would have to be read in a manner that is compatible with other constitutional provisions.
There is a more fundamental issue of constitutional amendment at stake that prevents this unilateral action by Quebec. In 2014’s Senate Reform Reference the Court was clear that the federal Parliament on its own could not effect changes to the Senate without provincial consent. One of the issues in that case was that the federal government was proposing to effect changes to the Senate’s powers by indirectly altering the method of appointments to the Senate to ultimately bind future prime ministers to appointing the winners of “consultative” elections. The lesson from the Senate reference is that the court regards the Constitution as a coherent whole (using a nebulous metaphor of the “constitutional architecture”).
Given the context in which the Quebec government is proposing these amendments – as part of a bill that will radically assert the dominance of the French language in a way that is almost inevitably going to result in Charter challenges over infringements of the rights of minority anglophone Quebecers – the purpose of the provisions should be read as an attempt to circumvent or alter judicial interpretation of the Charter itself. This is, on principle, impermissible unilateralism on the part of one of the constituent units of Canadian federalism. The courts are unlikely to permit it.