Provincial Constitutions, the Amending Formula, and Unilateral Amendments to the Constitution of Canada: An Analysis of Quebec’s Bill 96

28 Pages Posted: 8 Jul 2022

Date Written: July 7, 2022

Abstract

This paper critically analyzes Quebec’s authority to unilaterally amend the Constitution of Canada. Via a critical analysis of the proposed provisions, which would recognize Quebecers as a nation and French as the only language of the province, the paper asserts that provinces cannot make direct amendments to the text of the Constitution of Canada. This argument is reflected in the wording of the various constitutional amending procedures, historical and contemporary constitutional practice, and the underlying purpose and the fundamental distinction, and complex relationship, between the Constitution of Canada as supreme law and the constitution of the province. The paper also analyzes the specific matters in the proposed provisions and concludes that the addition of either of the proposed provisions requires recourse to an amending procedure other than section 45. Adding recognition of Quebecers’ status as a nation to the Constitution Act, 1867 exceeds the scope of provincial constitution, in part because it would not reflect a statement by Quebec in its own provincial constitution, something it would be free to enact via ordinary legislation. Instead, what Quebec proposes is to confer such recognition by the entire country. The language provision requires recourse to either the bilateral procedure under section 43 or the unanimity procedure of section 41, given the express language of other provisions of the amending formula. Finally, the unilateral enactment of these amendments would be contrary to the constitutional architecture.

Keywords: constitutional amendment, provincial constitutions, Constitution of Canada

Suggested Citation

Macfarlane, Emmett, Provincial Constitutions, the Amending Formula, and Unilateral Amendments to the Constitution of Canada: An Analysis of Quebec’s Bill 96 (July 7, 2022). Osgoode Legal Studies Research Paper No. 4156421, Available at SSRN: https://ssrn.com/abstract=4156421

Emmett Macfarlane (Contact Author)

University of Waterloo ( email )

200 University Avenue West
Waterloo, Ontario N2L 6C2
Canada

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