The Section 45 Constitutional Amendment Becomes a Vehicle for Provincial Autonomism

“A crocus and fleur-de-lis entwined.
Autonomism forever!:

François Legault’s Nationalist Autonomism

In 2021, the Government of Quebec began releasing its own “Administrative Consolidation of the Constitution Act, 1867 and the Canada Act, 1982” in 2021[1], which differed from and ostensibly rivalled the Department of Justice’s latest consolidation of the Constitution Acts issued in January 2021.[2] Quebec, for instance, rejected the federal Department of Justice’s long-standing practice of “indirect amendment,” where its lawyers modify the text of the Constitution Act, 1867 to what it ought to say based on statutes which have amended it by implication but not directly. In retrospective, it seems as if Quebec was laying the groundwork for another more ambitious project.

In June 2022, Quebec enacted an Act respecting French, the Official and Common Language of Quebec, which aims to bolster the French language and affirm the existence of Quebeckers as a French-speaking nation.[3] This statute also contains a significant constitutional innovation. The Legislature of Quebec used the Section 45 Amending Procedure (which allows provincial legislatures to alter their provincial constitutions) to insert new sections 90.Q1 and 90.Q2 directly into the Constitution Act, 1867 declaring, respectively, that “Quebeckers form a nation” and that “French is the only official language of Quebec and the common language of the Quebec nation.”[4] The “Q” in the two provisions stands for Quebec. Section 90 falls under Part V of the Constitution Act, 1867, which outlines “Provincial Constitutions.” Furthermore, the Government of Quebec swiftly issued the 2nd edition of its “Administrative Consolidation of the Constitution Act, 1867 and the Canada Act, 1982” to coincide with the enactment of Bill 96 into law on 1 June 2022.[5] An authoritative governmental consolidation of the Constitution Acts containing Quebec’s new provisions now exists as a reference.

Prior to 2022, provinces had only impliedly repealed or amended provisions in Part V of the Constitution Act, 1867 through organic statutes without necessarily invoking the Section 45 Amending Procedure. But Quebec charted a new course, and now Saskatchewan has built on Quebec’s precedent with a bold declaration of its own autonomy against Ottawa through the Saskatchewan First Act. Danielle Smith’s government in Alberta might follow a similar course in the coming weeks for the proposed Alberta Sovereignty Act.

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Posted in Amending Formulas, Constitution (Written) | 2 Comments

The Notwithstanding Clause Strikes Again!

Another moral panic against the Notwithstanding Clause has broken out and gripped the salons and cafes of Toronto in a repeat of the previous Panic of 2018;  Andrew Coyne outed himself yesterday as the Geraldo Rivera of this second wave.

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Posted in Constitution (Written), Constitutional Conventions, Notwithstanding Clause | 2 Comments

My Latest Book Review in the Journal of Parliamentary and Political Law

The Journal of Parliamentary and Political Law just published my review of Donald F. Bur’s Laws of the Constitution Consolidatedby the University of Alberta Press.

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Posted in Articles, Articles and Books, Constitution (Written), Indirect Amendment, Reviews and Critiques | Leave a comment

How Would We Amend or Abolish the Oath of Allegiance to the King in the Constitution Act, 1867 ?

The Leaders’ Debate and the Demise of the Crown

During Radio-Canada’s leaders’ debate on 22 September 2022, the moderator Patrice Roy barely suppressed his own condescending laughter to ask the leaders of five political parties, “Should we still, in Quebec, swear allegiance to the British Crown, thus ‘Charles III’?” to become a Member of the National Assembly. He also noted that Québec solidaire (a left-wing secessionist party) had tabled legislation in the previous National Assembly to make swearing the oath optional.

Premier François Legault said that he wouldn’t mind studying the question and possibly making changes but that he did not regard it as a priority; Liberal leader Dominique Anglade and Conservative leader Éric Duhaime circumvoluted less elegantly and less succinctly to the same effect. But Paul St. Pierre Plamondon, the leader of the Parti Québécois, and Gabriel Nadeau-Dubois, the “male spokesperson” of Québec solidaire, denounced unambiguously what they regard as the absurdity of the oath, St. Pierre Plamondon on republican and secessionist principle and Nadeau-Dubois on the “because it’s 2022” teleology. No one on the stage seemed to take the oath of allegiance seriously, and even moderator Patrice Roy let out some incredulous chuckles whilst putting the question to the four party leaders and one male spokesperson.

François Legault led his Coalition Avenir Québec to a second consecutive and even larger parliamentary majority on 3 October 2022, winning 90 out of 125 seats. And on 18 October, Legault rejected St. Pierre Plamondon’s unconstitutional idea of passing a simple motion that would permit the three Péquistes elected to take their seats in the National Assembly without swearing the oath of allegiance on the grounds that a mere motion of a legislative body cannot supersede a provision of the Constitution Act, 1867.[1] Being a lawyer himself, Paul St. Pierre Plamondon should already understand that concept.

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Posted in Amending Formulas, Constitution (Written), Crown (Powers and Office), Oaths of Allegiance | 2 Comments

Fashionable Complaining about Single-Member Plurality

Sanjay Ruparelia’s column in the Globe and Mail today typifies the confused and contradictory discourse over electoral reform here in Canada. He joins Fair Vote Canada in perpetuating this absurd myth that majoritarian electoral systems encourage descent into authoritarian rule and in complaining that changes in government lead to what intellectuals and technocrats denounce as “policy lurch,” or what the rest of us call a change in policy between two political parties which hold different points of view.

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Posted in Electoral Reform, Reform | Leave a comment