The Morning Brief – 05.26.21

By Bruce Carson


Quebec’s Bill 96 proposes Quebec as a “nation” and French as the only official language of Quebec through amendments to the Constitution of Canada.

Are there limits on unilateral provincial constitutional amendments?

Going back to the Meech Lake Accord debates and “distinct society” what does “nation” mean when it is entrenched in the Constitution Act, 1867?

Can a province which has never officially subscribed to the reformulated Canadian Constitution of 1982, actually offer amendments before accepting it?

What is the effect of this proposal on other provinces and federal political parties?

Quebec’s Bill 96, its new proposed language law contains two clauses which Quebec’s Premier Legault wants to see entrenched in the Canadian Constitution. The new Sections 90 Q.1 and 90 Q.2 would entrench Quebec as a “nation” and French as the only Official Language of Quebec.

While Section 45 of the Constitution Act, 1982 as part of the amending formula allows a province to pass a law which amends the Constitution of the province; the question is, will the amendments proposed by Quebec, particularly “nation” affect other provinces or the rights of minorities, particularly the rights of minority language speakers? As Christopher Nardi points out in his National Post article, Section 133 of the Constitution Act, 1867, protecting language rights is not being amended and therefore its effect is not diminished.

But before going any farther with the discussion of Quebec’s Bill 96, it is instructive to look back at the 1987 Meech Lake Accord and the discussions that ensued about meaning and effect of the “distinct society” clause.

The late Professor Peter Hogg, probably Canada’s foremost constitutional expert in his “little book” as he called it, on the Meech Lake Accord stated “the purpose of the Accord was to better accommodate Quebec within the Canadian federation …The Accord reconciles the government of Quebec to the Constitution Act, 1982 so that it will henceforth participate in future constitutional change, and will no longer attempt routinely to override the Charter of Rights.”

The intent of the amendments proposed by Premier Legault is not clear.

The part of the Accord which most closely resembles the two clauses in Bill 96 is Section 2 (1) which states “The Constitution of Canada shall be interpreted in a manner consistent with (a) the recognition that the existence of French Speaking Canadians, centered in Quebec, but also present elsewhere in Canada, and English speaking Canadians, concentrated outside Quebec but also present in Quebec constitute a fundamental characteristic of Canada; and (b) The recognition that Quebec constitutes within Canada a distinct society.”

Hogg writes that 2(1) provides that the Constitution is to be interpreted in a manner consistent with the recognition of (a) the existence of linguistic duality in Canada and (b) the fact that Quebec constitutes a “distinct society.” Hogg does acknowledge that “a faint argument could be perhaps be made that these provisions are new grants of power.”

Those who can remember back to that time or were involved in Meech and its successor The Charlottetown Accord will vividly remember the attacks levelled at the Accord and particularly this Section by the late Prime Minister Pierre Elliot Trudeau during his appearance on August 27, 1987 before the Special Joint Committee of the Senate and House of Commons on the 1987 Constitutional Accord.

With regard to the Legault proposal, we have no clarity on why these clauses are to be entrenched in the Constitution or whether their proponent sees them as interpretive only or would they in some instances become a new grant of power.

The debates around Meech and Charlottetown were all about the meaning of words; are they merely interpretive or at some point become a grant of power? The argument was as simple as since these words are being used, they must mean something.

In the matter at hand, because Quebec does not propose to use the general amending formula, which Meech used, can Quebec unilaterally make these changes?

The first reaction from Prime Minister Trudeau was the complete opposite of what was the position of his father regarding Meech. Prime Minister Justin Trudeau said “Quebec has the right to modify a part of the Constitution” and two weeks ago at his media avail called this proposal from Quebec “perfectly legitimate.” In this view Trudeau seems to be supported, at this time, by the leaders of federal political parties.

There are constitutional experts who disagree, most notably Professor Emmett Macfarlane of the University of Waterloo writing in Policy Options stated “this is, in principle, impermissible unilateralism on the part of one of the constituent units of the Canadian federation.” He added “the courts are unlikely to permit it.”

We are a far cry from the motion adopted by the House of Commons during the first Harper minority, “that the House recognize that the Quebecois form a nation within a united Canada.”

Now we are into speculation, by Premier Kenney and others as to how unilateral amendments ostensibly pertaining to one province may come to fruition.

Don Braid in a recent column notes that Kenney is taking the position that Quebec is leading the way for Alberta to assert its own powers and identity. Kenney said “I look to Quebec with a degree of admiration.” As for Alberta, Kenney notes “we are plotting out a longer term strategy to build a stronger, more resilient and more autonomous Alberta with in the Constitution.”

Kenney notes, Quebec’s identity as a nation, “it is an historical and cultural reality that reflects Quebec’s distinctive history and language and goes back 400 years.

As many commentators have concluded, while agreeing with Legault and Bill 96 may suit Trudeau’s and other leaders short term political gain, the question is can this take place legally within our Constitution? Can a province which has not adopted the 1982 Constitution Act, propose amendments through the 1982 amending formula?

Also as Andre Pratte wrote are the words “purely symbolic or do they mean something which may have concrete legal consequences.”  Do the amendments affect the rest of Canada?

There is a lot we don’t know here, which will no doubt at some point will require answers from the courts.

In the meantime, does agreeing with Legault on this matter give Trudeau the push necessary to attain his coveted majority?

A larger question was posed by Conrad Black when he wrote “is it an attempt to take more for Quebec without assaulting Canada or is it intended as another step towards secession?

To Come

  • The Parliamentary Budget Officer presents two costing reports
June 1
  • GDP numbers for March and Q1to be released
June 4
  • Job numbers for May to be released