Monday, May 31, 2021

History of Quebec's provincial constitution

The Quebec government of Premier François Legault intends to amend the Canadian constitution to make French the only official language of the province. Not through one of those Meech Lake horsetrading extravaganzas -- just an ordinary bill to be passed in the provincial legislature. Morceau de gateau, as we say in English.

This both is and is not constitutional, shall we say. Provinces can indeed amend their own provincial constitutions in most regards. (It's in Section 45.)  This power was actually secured for the province by Ontario's reformers of the 1860s. They were determined to come into confederation without an upper house in their provincial parliament.  As you may have noticed, Quebec and every other two-house province eventually followed their example, via s.45.

But at the same time, the constitution has, the Supreme Court likes to remind us, "an architecture." It hangs together. You can't produce one line out of context to overrule the fundamental principles the constitution provides. The disallowance section doesn't permit Ottawa to cry "Zap, cancelled!" to legislation properly passed by provinces sovereign in their own jurisdiction, and s.121 doesn't mandate free trade absolutists to abolish any province's business regulation that annoys them. 

So there's a sorta-kinda-possibly legitimate way for Quebec to pass Bill 96 and declare French the only official language of Quebec; it's just putting some words into the provincial constitution, no? But there is also the constitution itself, way outside the amendable provincial part, that establishes certain fundamental rights for both English and French in both Quebec and the federal jurisdiction. Section 41 confirms that any change to the status of the French or English language requires unanimous consent of Ottawa and the provinces, and section 45 (see above) is subject to section 41. Quebec's Bill 96 actually says it is. 

So it sorta kinda isn't a constitutional change.

Provinces shouldn't pass feel-good provincial laws that produce constitutional clutter, and politicians should probably say so. But I'm persuaded by Paul Wells's recent explanation in Maclean's that if Quebec's bill amends the constitution, it still hasn't amended the constitution. 

In constitutional amendments as in much else, you get what you pay for. Work and patience and accommodation buy solidity. Stunts buy stunts.


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