Madam Speaker, practice makes perfect.
The motion that is before us today has two parts. The first part says this, and I quote:
That the House agree that section 45 of the Constitution Act, 1982, grants Quebec and the provinces exclusive jurisdiction to amend their respective constitutions...
The second part says, and I quote:
[That the House] acknowledge the will of Quebec to enshrine in its constitution that Quebeckers form a nation, that French is the only official language of Quebec and that it is also the common language of the Quebec nation.
One cannot vote for or against one part of the motion without doing the same for the other part. However, I have very little to say about part two, which asks us to take note of two expressions of what is called the will of Quebec and also to take note of the obviously true fact that French is the common language of the Québécois, which it has been since 1608.
We all deeply and sincerely hope that this foundational fact that French is the lingua franca of the Québécois will continue to be the case for the next 400 years, just as it has been for the past 400 years.
For me, a Quebec nation in which French is not the lingua franca is unthinkable.
Likewise, it is a fact already acknowledged by the House that the Québécois are a nation. Fifteen years ago, the Commons voted for that by a margin of 265 to 16.
That this House recognize that the Québécois form a nation within a united Canada.
The words “au sein d'un Canada uni” are absent from today's motion, as one would expect from a motion produced by the Bloc Québécois. Nonetheless, it is true that the motion, as it is worded, is by no means incompatible with a united Canada. It is quite the opposite.
Beyond this, I am not sure there is much to say about the second half of the motion. My interest, as a student of the Constitution, is in responding to the first assertion of the motion, which says, in its English version, “That the House agree that section 45 of the Constitution Act, 1982, grants Quebec and the provinces exclusive jurisdiction to amend their respective constitutions.”
My comments on this subject are primarily intended to sway the views of my anglophone colleagues, and therefore I will be speaking only English as I address this subject.
The wording of section 45 is, “Subject to section 41, the legislature of each province may exclusively make laws amending the constitution of the province.”
Members will notice the internal reference to another part of the Constitution, section 41. This reference is necessary because unlike the constitutions of other federations, like Switzerland or Australia, Canada's Constitution contains multiple amending formula instead of just one. That is to say that different parts of the same Constitution can only be amended using different combinations of legislative instruments from different legislative bodies.
For example, there are some parts of the Constitution that may only be amended if identical resolutions are passed in Parliament and in all 10 provincial legislatures. This amending formula is contained in section 41 of the Constitution Act, 1982, and of course, section 41 is the clause specifically referenced in section 45. I will not mention section 41 except to observe that it was referenced in section 45 to prevent provinces from unilaterally altering the powers of their lieutenant governors.
Other parts of the Constitution, including the Charter of Rights, can be amended only by means of identical resolutions in Parliament and in the legislatures of the seven provinces containing at least 50% of Canada's population. This is colloquially known as the 7/50 amending formula, and it is described in section 38 of the Constitution Act, 1982.
On the other hand, to enact an amendment to the charter designed to place further restrictions on the powers of only a single province, another formula that is found in section 43 of the Constitution Act, 1982, applies. Identical resolutions must be adopted by the legislature of that province alone and by Parliament. It was the use of the section 43 amending formula that in 1993 made it possible to add a new linguistic right to the charter that applied to New Brunswick alone, which was section 16.1 of the charter.
Likewise, section 43 is also the only formula that may be used for either of the two following matters. It states:
(a) any alterations to boundaries between provinces; and
(b) any amendment to any provision that relates to the use of the English or the French language within a province,
The existence of multiple amending formulae for the Constitution of Canada is not new. Section 92(1) of the Constitution Act, 1867 was the predecessor to section 45. It was in force for over a century.
Section 92(1) stated:
...in each province the legislature may exclusively make laws in relation to the amendment from time to time of the Constitution of the province, except as regards the office of Lieutenant-Governor.
The ability of Quebec or of any other province to amend its own Constitution is uncontroversial. The more challenging question is what constitutes a provincial constitution.
In other federations like Switzerland, Australia or the United States, this question would never arise. Each Swiss canton and each American state has its own stand-alone constitution. The constitution of the Commonwealth of Massachusetts, for example, is the oldest written constitution in the world, dating back to 1780, which makes it a decade older than the constitution of the United States.
In Canada, such tidy, clearly defined provincial constitutions do not exist. In this province, provincial constitutions can take one of three forms, which leads to some surface confusion.
In the three provinces that were created by federal statute, the relevant federal statute is the constitution of the province: the Manitoba Act, the Saskatchewan Act and the Alberta Act, respectively. Despite being acts of the Parliament of Canada, these statutes can, under authority of section 45, be amended only by the provincial legislature. Parliament is constitutionally precluded from being involved.
In the five provinces that existed before Confederation, the pre-existing British statutes under which they had been created are their constitutions. Despite being acts of the Parliament at Westminster, these too can be amended unilaterally by the province under authority of section 45. Again, there is no permitted role for Parliament.
That leaves Quebec and Ontario. Their constitutional situation is summed up by eminent constitutional scholar Professor Peter Hogg in the following words:
The Constitution Act, 1867, which, it will be recalled, created Ontario and Quebec out of the old united province of Canada, contains a set of provisions (ss. 69 to 87) which are essentially the constitutions of those two provinces.
Therefore, sections 69 to 87 are the provisions which could potentially be subject to amendment, using the section 45 amending formula, which is to say that they could be potentially subject to amendment by means of an act of Quebec's national assembly or Ontario's legislature.
It is Professor Hogg's view, and my own as well, that Parliament, once again, is not permitted to play a role in such amendments.
This leaves the question of whether amendments can be made to the Constitution of Quebec or Ontario that involve making any amendment to the Constitution Act, 1867, in which the subject matter falls outside subjects covered in sections 69 to 87, which are sections that deal solely with the functioning of the two provincial legislatures.
In particular, could changes be made such as those proposed in Quebec's Bill 96, which seeks to add two new sections immediately following section 90 of the Constitution Act, 1867? I have several tentative answers to this question.
First, the fact section 90 falls outside of the section 69 to 87 envelope is irrelevant.
Second, this is a matter that is outside the remit of Parliament. We are not decision-makers on this. The courts ultimately will have to decide whether sections 158 of Bill 96, which is the part of the bill in which these two amendments are proposed, is intra vires or ultra vires the section 45 amending formula. We MPs can weigh in on this subject but our views are not binding on anybody.
Third, and this is the last point I will make, and most important, although the motion we are debating today deals with the same subjects as the two contemplated additions to the Constitution Act, 1867 contained in Bill 96, we have not been asked to vote for or against Bill 96. We have been asked to vote on a specific question regarding the section 45 amending formula and a specific statement about what the motion refers to as the will or volonté of the Québécois, as expressed by the national assembly.
On these questions, it seems to me the answer is yes—