Who Decides What the Constitution Is and Says? Quebec Modifies the Text of the Constitution Act, 1867


Introduction

Law 96 has generated controversy and opposition amongst English-speakers in Quebec and, to a lesser extent, in the rest of Canada when the Legislature of Quebec enacted it last week for its provisions on language.

But it contains one other significant innovation which most of English Canada has overlooked. Through Law 96, the Legislature of Quebec enacted a constitutional amendment under the Section 45 Amending Procedure, which allows provincial legislatures to alter their provincial constitutions, and added two new sections directly to the text of the Constitution Act, 1867 as sections 90.1 and 90.2. Section 90 falls under Part V of the Constitution Act, 1867, the section on “Provincial Constitutions.”

As far as I know, provinces have thus far only impliedly repealed or amended provisions in Part V of the Constitution Act, 1867 through organic statutes without necessarily invoking the Section 45 Amending Procedure by name. But Quebec’s legislature for the first time used the Section 45 Procedure to add provisions directly. Furthermore, the Government of Quebec has already updated its consolidation of the Constitution Acts, 1867-1982 to include these new provisions. The federal Department of Justice produced its most recent consolidation of the Constitution Acts, 1867-1982 in 2021. So it will be very interesting to see whether the federal Department of Justice recognises the legitimacy of these amendments when it produces its next consolidation in a few years.

We might no longer even be able to agree on what the Constitution Act, 1867 says.

Divergent Consolidations of the Constitution Acts

The Journal of Parliamentary and Political Law will publish my review of Donald F. Bur’s Laws of the Constitution later this year, and one of the predictions that I made in that manuscript has already come true and sooner that I had previously believed.

In some ways, I’ve been studying this issue since accidentally stumbling upon the whole concept of “indirect amendment” five years ago. I followed up with an article on how the federal Department of Justice alters the text of the Constitution Acts based on what they should say because of how some statutes have changed the text by necessary implication but not by directly repealing and replacing the provisions in question.

Bur also touches upon another problem with the Department of Justice’s consolidations of the Constitution Acts and the true “difficulty in comprehending what is in fact current law.” Bur explains:

“For some unknown reason, constitutional laws are often drafted differently from normal legislation. Normally, if a parliament or legislature seeks to repeal or amend an earlier law and replace it with a new one, it will specifically state what law is repealed or amended and how the new law reads. With constitutional laws, in most instances, the amendment or repeal of an earlier constitutional law is only implied. Even when a constitutional law specifically amends an earlier provision, it will generally not provide a revised wording in the new law. A compilation that keeps intact all the earlier documents provides to the reader provisions that may have been expressly, or impliedly, repealed or amended. This not only adds to the size of the compilation but also to the difficulty in comprehending what are the current constitutional rules.”[1]

In this passage, he alludes to the practice of “indirect amendment” that Elmer Driedger first introduced to the Department of Justice’s consolidations of the Constitution Acts in 1957 – but which the Department of Justice has not applied consistently.[2] The federal Department of Justice has been compiling regular consolidations of the British North America Acts and, later, the Constitution Acts, since the early 20th century. Consolidations date from 1913, 1935, 1948, 1952, 1957, 1958, 1964, 1965, 1967, 1976, 1989, 1996, 1998, 1999, 2001, and 2013. The consolidations from 1935 and 1948 included not merely the British North America Act, 1867, but all the other amending British North America Acts up to the time of their publication. But, a significant shift in methodology occurred in 1957 when Elmer Driedger, then Assistant Deputy Minister and Parliamentary Counsel in the Department of Justice, became responsible for the periodic consolidations of the British North America Acts.[3] Under Driedger’s direction, the federal Department of Justice discontinued the practice of compiling all the British North America Acts and instead included only the British North America Act, 1867 and either incorporated the various amending British North America Acts into its text or listed them as footnotes outside the text of the statute itself. Therein lies the origin of “indirect amendment.” Driedger openly acknowledges his new practice in an updated foreword to the consolidations of the British North America Acts that he prepared. He defines “indirect amendment” as instances whereby the Westminster Parliament, Parliament of Canada, and provincial legislatures have altered certain provisions by necessary implication.[4]

For example, neither the Imperial Parliament nor the Parliament of Canada has ever amended the text of section 37 of the Constitution Act, 1867, which lists the number of MPs per province and the total number of MPs in the House of Commons upon Confederation in 1867, but admitting new provinces into Confederation and applying the Representation Formula under section 51(1) of the Constitution Act, 1867 after each decennial census has steadily increased these totals. The Department of Justice began altering the text of section 37 under Driedger’s doctrine of “indirect amendment” in 1957 but failed to do so consistently. The Department of Justice’s most recent consolidation from 1 January 2021, for instance, says that the House of Commons consists of 308 members when, in fact, the Representation Order issued under the Electoral Boundaries Readjustment Act increased the size of the House of Commons to 338 MPs and entered into force in 2014, fully seven years earlier.[5] Similarly, the Department of Justice never “indirectly amended” references to “Newfoundland” into “Newfoundland and Labrador” after the Constitution Amendment, 2001 (Newfoundland and Labrador) entered into force in December 2001; as such, sections 22 and 37 of the Constitution Act, 1867 (which list the number of Senators and Members of the House of Commons, respectively) still say “Newfoundland” instead of “Newfoundland and Labrador” in the consolidations from 2013 and 2021.[6] Bur has solved this problem in his compilation by applying the Department of Justice’s methods more rigorously than the Department of Justice itself: he updated sections 22 and 37 of the Constitution Act, 1867 to say “Newfoundland and Labrador,” and he cited the Constitution Amendment, 2001 as justification for his indirect amendment.[7]

As Bur himself readily acknowledges in the preface of his work, consolidating constitutional statutes always depends upon the considered judgement of those who consolidate them: “In the absence of express wording that an earlier provision had been amended or repealed, I exercised my judgement and removed the affected provision from the body of the text.”[8] Different consolidations might therefore look different, even to the point where the text of the provisions of the Constitution Acts themselves differ from one consolidation to another.

The Government of Quebec also released its own “Administrative Consolidation of the Constitution Act, 1867 and the Canada Act, 1982” in 2021, and it differs from the Department of Justice’s consolidation of January 2021 and Bur’s Laws of the Constitution of November 2020. Quebec, for instance, rejected the doctrine of indirect amendment entirely and preserved the original wording of sections 22 and 37 and all other sections of the Constitution Act, 1867.[9] The Legislature of Quebec has now also amended the Constitution Act, 1867 directly by adding two new sections into Quebec’s provincial constitution under the Section 45 Amending Procedure. The Official and Common Language of Quebec Bill inserted sections 90.1 and 90.2 into the Constitution Act, 1867 declaring that “Quebeckers form a nation” and that “French is the only official language of Quebec and the common language of the Quebec nation.”

Quebec swiftly issued the 2nd edition of its “Administrative Codification” on 1 June 2022 to take these amendments into account. It will be interesting to see whether the federal Department of Justice regards the Legislature of Quebec’s constitutional amendment as legitimate direct amendments to the text of the Constitution Act, 1867 and therefore whether it will include these new sections 90.1 and 90.2 in its next consolidation, and whether Bur would include these provisions if he produces a 2nd edition of the present Laws of the Constitution.

Conclusion

All these considerations point to a startling conclusion: no one seems to maintain, or there does not seem to exist, an official, authoritative version of the Constitution Acts, the Constitution of Canada, or the constitutions of the provinces. We have entered a post-modern era of Constitution-making.

Certainly before Patriation, provincial legislatures could not amend the text of the British North America Act, 1867 directly because it remained an Imperial statute, and the Imperial Parliament had only ever delegated to the Parliament of Canada a limited authority to amend some of its provisions directly in 1949. For example, Quebec abolished its Legislative Council in 1968 but did so through an organic provincial statute. This provincial statute repealed by necessary implication sections 71 to 79 of the British North America Act, 1867, but both the federal Department of Justice and Quebec’s Secretariat of Canadian Relations continue to list sections 71 to 79, inclusive, in their respective consolidations as spent and inoperative provisions. But I think that after Patriation and the establishment of the Section 45 Amending Procedure, there exists at least a plausible argument that provincial legislatures can amend directly the text of Part V of the Constitution Act, 1867, which contains “Provincial Constitutions.”

I am leaning toward the view that any provincial legislature has the authority to amend Part V of the Constitution Act, 1867, whether by repealing by implication or modifying directly the provisions that apply to their provinces, because the effects of repeal by necessarily implication versus direct repeal remain the same. But perhaps provincial legislatures can through the Section 45 Amending Procedure only repeal or modify Part V of the Constitution Act, 1867 by necessary implication. In that case, we could then only repeal and replace directly or add provisions directly through a bilateral constitutional amendment under the Section 43 Amending Procedure in which the provincial legislative assembly, House of Commons, and Senate adopt concurring resolutions to alter the “Constitution of Canada.”[10] The problem is that Part V of the Constitution Act, 1867 fulfills two functions as both “the Constitution of Canada” (the Section 43 Amending Procedure) and “the constitution of a province” (the Section 45 Amending Procedure). Perhaps in a break with my usual character on these things, I’m genuinely not ideologically wedded to either viewpoint on this question of how far the Section 45 Amending Procedure extends. But even if the Section 45 Amending Procedure does not permit provincial legislatures to amend directly the text of Part V of the Constitution Act, 1867, Quebec’s Law 96 will still benefit from the presumption of constitutionality which applies to all statutes until the courts declare otherwise.

Let the debate continue! It’s very interesting either way. We need more studies in this whole field in general and to re-ground Canadian political science in core constitutional realities.

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Notes

[1] Donald F. Bur, Laws of the Constitution Consolidated (Edmonton: University of Alberta Press, 2020), xi-xii.

[2] James W.J. Bowden, “‘Indirect Amendment: How the Federal Department of Justice Unilaterally Alters the Text of the Constitution of Canada,” Commonwealth Law Bulletin, 44, no. 1 (2019): 41-65; J.W.J. Bowden, “What’s In a Name? Newfoundland & Labrador and the Constitution Amendment, 2001,” Journal of Parliamentary and Political Law, 16, no. 1 (2022): 243-259.

[3] Canada, Department of Justice, A Consolidation of the British North America Acts, 1867 to 1952 (Ottawa: Her Majesty the Queen in Right of Canada, 1 January 1957).

[4] Canada, Department of Justice, A Consolidation of the Constitution Acts, 1867 to 1982 (Ottawa: Her Majesty the Queen in Right of Canada, 1 January 2001), ii.

[5] Canada, Department of Justice, A Consolidation of the Constitution Acts, 1867 to 1982 (Ottawa: Her Majesty the Queen in Right of Canada, 1 January 2021), at section 37 and page 8.

[6] Canada, Department of Justice, A Consolidation of the Constitution Acts, 1867 to 1982 (Ottawa: Her Majesty the Queen in Right of Canada, 1 January 2013), at sections 22 and 37, at pages 6 and 10-11; Canada, Department of Justice, A Consolidation of the Constitution Acts, 1867 to 1982 (Ottawa: Her Majesty the Queen in Right of Canada, 1 January 2021), at sections 22 and 37, at pages 5 and 8.

[7] Bur, Laws of the Constitution Consolidated, at pages 212 and 216.

[8] Bur, Laws of the Constitution Consolidated, at page xiii.

[9] Quebec. Secrétariat du Québec aux relations canadiennes, Codification administrative de la Loi constitutionnelle de 1867 et de la Canada Act 1982 (Gouvernement du Québec, 2021), at pages 14 and 19. Indeed, it is telling that the Government of Quebec refuses to use the term Constitution Act, 1982, given that the Government of Canada patriated the Constitution Acts over Quebec’s objections.

[10] Guy Régimbald and Dwight Newman, The Law of the Canadian Constitution, 1st Ed. (LexisNexis, 2013), at para 2.39, footnote 83.

About J.W.J. Bowden

My area of academic expertise lies in Canadian political institutions, especially the Crown, political executive, and conventions of Responsible Government; since 2011, I have made a valuable contribution to the scholarship by having been published and cited extensively. I’m also a contributing editor to the Dorchester Review and a member of the editorial board of the Journal of Parliamentary and Political Law.
This entry was posted in Amending Formulas, Constitution (Written), Indirect Amendment. Bookmark the permalink.

2 Responses to Who Decides What the Constitution Is and Says? Quebec Modifies the Text of the Constitution Act, 1867

  1. Rand Dyck says:

    Trust you to discover this new constitutional wrinkle! A really interesting situation!

    Like

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