Can Quebec change the Constitution unilaterally?
Bill 96 will damage the anglophone community of the Gatineau, likely stripping Chelsea of its bilingual status and supplanting harmony with hostility. The bill proposes to amend Canada’s Constitution by adding, as “fundamental characteristics of Quebec,” that “Quebecers form a nation” and “French shall be the only official language of Quebec [and] the common language of the Quebec nation.” Can this be done by Quebec alone, as Premier Legault asserts? I think not.
For the language aspect, it requires the approval of Parliament. Since patriation of the Constitution in 1982, amendments can be made in one of five ways; provinces can change provisions that apply only to them, as both Newfoundland and Labrador and Quebec have done to eliminate separate religious education. But the use of French is another matter. This is so because “any amendment to any provision that relates to the use of the English or the French language within a province” requires the approval of the federal Parliament as well as of the province (Constitution Act, 1982, s. 43(b)). Why does this not include your bill, Mr. Legault? Federal politicians are caught between a rock and a less than soft place: do they do the right thing and insist on the correct procedure or do they go along, in what is likely to be an election year, so as not to alienate Quebec voters? So far, they all seem to have chosen the latter course.
Do Quebecers form a nation? Is this merely symbolic, with no legal effect? Mr. Legault himself has said not. Courts typically regard legislative change as intended to have consequences. “Nation” is an ambiguous term, open to numerous interpretations. Who exactly are Quebecers? Would “nation” give Quebec enhanced status among provinces; rights different from those of others? Is there possibly a corresponding nation consisting of majority-English provinces – deux nations? It cannot be predicted how far court interpretation will reach. The status of other provinces may be affected. They need to have their say as provided by s. 38, namely approval of at least seven provinces comprising at least two thirds of the total provincial population, as well as parliamentary approval.
It seems Mr. Trudeau will allow the amendment to proceed unilaterally, disregarding what appear to be the constitutional requirements. This will, admittedly, avoid division in the short term. But if the Supreme Court were to find this to be an invalid amendment, possibly on challenge by a province that feels itself disadvantaged by Quebec’s new status, we could be in for the most divisive debate in a generation, and fuel for separatist revival. A political solution would be to punt this to post-election by asking the Supreme Court for its opinion on which amending provisions apply. A not-uncommon political strategy – let the courts take the heat.
John Edmond, LLB, LLM (Constitutional law) is a retired barrister and solicitor of the Bars of Ontario and British Columbia, and who has a residence in La Pêche