Madam Speaker, I will be sharing my time with the Minister of Canadian Heritage.
I was born in Ontario, in Niagara, surrounded by Franco-Ontarians. I chose to go to Quebec at the age of 25 to study civil law, and I settled there. That is where I made a career of teaching civil law in both French and English, and I had my children educated in French.
I am with the majority of Quebeckers who identify with both Quebec and Canada. This is complicated, but I would like to remind my colleagues on the other side of the House that the vast majority of Quebeckers identify not just with Quebec, obviously with pride, but also with Canada, with pride as well.
It is not every day that we have the opportunity to dwell on the procedure for amending the Constitution of Canada. My remarks will address the scope and nature of the indisputable authority of provincial legislatures to amend their provincial constitutions. I wish to make three points today.
First, since Confederation in 1867, provincial legislatures have had the authority to unilaterally amend certain aspects of their provincial constitutions.
Second, while the exercise of this constitutional amending power typically relates to the machinery of government, it can nevertheless be carried out by a provincial legislature that wishes to amend its provincial constitution by adding provisions relating to the specific nature of the province.
Third, although the procedure for unilateral amendment by provincial legislatures allows for certain adjustments to a province's constitution, those adjustments must necessarily be limited to that province.
That means one province cannot affect another by this amending procedure, nor can it affect, by this amending procedure, other provisions of the Constitution of Canada or the norms whose existence was essential to the compromise leading to Confederation.
The provincial legislatures have always had the authority to amend their own constitutions. Section 92(1) of what was then known as the British North America Act, permitted provincial legislatures to exclusively make laws in relation to the matters that included the amendment from time to time of the constitution of the province, except in regard to the office of the lieutenant-governor. That provision was repealed and replaced in 1982. The authority for the provinces to amend their own constitutions is now located in section 45 of the Constitution Act, 1982, which provides that, subject to section 41, which deals with matters protected by unanimous consent procedure, the legislature of each province may exclusively make laws amending the constitution of the province.
As the successor to the provision under the former British North America Act, this provision has been held by the Supreme Court to be essentially equivalent in scope to its predecessor. For the legislatures to exercise the authority conferred by these unilateral amending procedures, all they need to do is legislate in the ordinary course. In short, then, we are not dealing with a new or even controversial power. Rather, it is a power as old as Confederation itself.
The constitutional amendments made under section 45 of the Constitution Act, 1982, and under its precursor in what is now known as the Constitution Act, 1867, have generally been in connection with government institutions.
For example, provincial legislatures initially exercised this authority to adopt legislation regarding their privileges and immunities. This authority also enabled the provincial legislatures to abolish their own upper chambers. When that happened, some provisions of the Constitution Act, 1867, the founding document of the Canadian Confederation, became obsolete.
For my last example, I will mention that provisions in a provincial law regarding the operation of the province's public service were deemed constitutional. There is therefore no doubt that the provincial legislatures can amend their province's constitution to a certain extent by adopting provisions regarding the operation of a provincial government body.
The instrument targeted by a constitutional amendment is important for determining the appropriate formula. That said, this factor alone must not be given undue weight. It would be impossible for a provincial legislature or for Parliament to indirectly amend the intangible provisions in the Canadian Constitution by adopting incompatible provisions in a separate piece of legislation.
The same is true for the rules of law in the provinces' constitutional texts. These provincial constitutions, along with the Canadian Constitution, are not all found within a single document labelled as the constitution. Rather, they consist of a set of texts, principles and agreements of a constitutional nature regarding the provincial governments. What matters is the nature of the amendment and the effect it will have. We would be putting form above substance if we were to only look at the title of the document being amended.
That being said, provisions enacted through the unilateral amendment procedure cannot amend the provisions of the Constitution of Canada, the supreme and entrenched law of the country. The authority that section 45 of the Constitution Act, 1982, provides is limited to amending the constitution of the province. To make an amendment in relation to any provision of the Constitution of Canada that applies to one or more, but not all, provinces would require proceeding by way of the bilateral procedures set out in section 43 of the Constitution Act.
This would be the case, for instance, if a province intended to make an amendment to one of the provisions that relates to the use of English or French language within the province. It is through this procedure that the Canadian Charter of Rights and Freedoms was amended to included section 16.1, which enshrines the equality of the French and English linguistic communities in the Province of New Brunswick.
An amendment may also be beyond the authority of the provincial legislatures under section 45 of the Constitution Act, 1982, even though it alters the provision that bears on the operation of an organ of the government of the province. This will be the case where the provision is entrenched as being indivisibly related to the federal principle or to a fundamental term or condition of the union at Confederation. This is the case for section 133 of the Constitution Act, 1867.
While it relates to the use of English and French in Parliament, in the legislature of Quebec and in the courts, it cannot be amended through either Parliament's unilateral amendment procedure or the provincial unilateral amendment procedure. Likewise, an amendment through the unilateral amendment procedure could not insulate provisions that conflict with the charter.
For instance, section 23 of the charter guarantees minority language educational rights to citizens of Canada. An amendment to this provision, which grants language rights to all Canadians in all of the provinces and territories, would require proceeding by way of unanimous consent procedure for amending the Constitution of Canada. This would require resolutions from the Senate, the House of Commons and the legislative assemblies of all 10 provinces.
That, however, is not what is being proposed by the bill introduced in the Quebec National Assembly. The amendment procedure relied upon in this case is the unilateral amendment procedure; because of this, the Constitution of Canada cannot be amended either directly or indirectly. The amendment may only relate to the constitution of the province. In that sense, the choice of procedure should guide our understanding of the proposal.
Keep in mind that the source of section 45 of the Constitution Act, 1982, goes back to the days of Confederation. This limited authority to amend certain aspects of a province's constitution is reflected in section 44 of the Constitution Act, 1982, which authorizes Parliament to unilaterally make certain amendments to the Constitution of Canada. These provisions recognize that Parliament and the provincial legislatures are equal partners in the Canadian constitutional structure.
While some elements of our constitutional order are, quite rightly, virtually immutable, others can still be amended in accordance with the constitutional architecture as a whole.