Quebec Justice Minister Barrette on a new constitution.
Image from Paul Wells's Substack
A couple of weeks ago, the journalist and commentator Paul Wells posted to his Substack an essay prompted by the Quebec provincial government's announcement that it would establish a written constitution for Quebec.
While noting that the constitutional proposal was condemned by every other political party in Quebec, and is mostly an attempt by the deeply unpopular CAQ government of Francois Legault to change the conversation away from all the ones it is in trouble over, Wells confesses:
I’m a little surprised to discover I kind of like this provincial constitution, or at least the idea of one.
The idea he likes is the ideas that provinces should have constitutions.
The Canadian provinces do have constitutions, in fact, and Wells acknowledges that they do. But he suggests that on matters of governance the gist of the Canadian constitution is the offhand phrase that it shall be "similar in principle to that of the United Kingdom," Provinces, he seems to mean, are entitled to a more formally laid out organic text.
I think there is a profound misunderstanding there, one Wells shares with too many constitutional experts. The "similar in principle" phrase is just a summary in the preamble. The fundamental rules for the workings of Canadian parliamentary government are actually succinctly (and brilliantly) written down in Sections 53, 54, and 55 (and elsewhere) in the Constitutional Act, 1867. They apply to provinces as well as to the federal government. And there is a whole section, Number Five, on details of provincial constitutions.
The Constitutional Act also lays out that the provinces are free to amend their own constitutions -- thereby recognizing and accepting initiatives like Quebec's current one. It was plain in the 1867 constitution but is now among the 1982 amendments as Section 45: any province "may exclusively make laws amending the constitution of the province."
Section 45 has often been used. As early as 1867, Ontario's representatives decided their province would come into Confederation without an upper house -- and all the other provinces eventually followed its lead and amended their own constitutions to abolish the ones they had.
But there is a condition. Section 45 is subject to Section 41: only the feds can make amendments relative to the Lieutenant-Governor of the province. And despite their general day-to-day irrelevance, the lieutenant governors are key to the parliamentary principles under which provinces operate, and to the federal-provincial hierarchy.
Wouldn't you know, Premier Legault's proposed constitutional amendments for a Quebec constitution aim directly at ... the office of the lieutenant governor. That dog ain't gonna run far. (The Parti Quebecois, knowing this, wants no Quebec constitution other than that of an independent and sovereign state)
Wells reminds us that only one province has written a set of amendments amounting to a provincial constitution: British Columbia. I think I'll take that one up in another post sometime. But read Paul Wells (link above) if you see the interest in all this.
