Quebec wants to adopt a new Constitution - and amend the Federal one!?

Politics & Elections
1

I just received notice of a bill that was recently tabled in the Canadian province of Quebec (Bill 1 - see here) in the National Assembly (its legislature). If passed, the bill will codify a Constitution for that province, as well as consequential Acts and consequential amendments to various important existing Acts. Has anyone heard of this?

As things stand, I am aware that our provinces have constitutions (in the theory of the federal Constitution Acts), but that unlike the American states, which have fully codified constitutions, these are mostly uncodified, or rather, mixtures of uncodified rules and specific laws that regulate things like elections and the legislative process. The last time I checked, only British Columbia had a codified “Constitution Act”, which IIRC was basically only a codification of such things as parliamentary procedure.

Anyway, that Quebec would be the first province to attempt to pass a cohesive codification of a constitution will probably come as no surprise to those of us who know how nationalist Quebec’s politics are (politicians in that province vacillate between asking for still more and more autonomy from Canada and demanding complete independence) and it will probably also not come as a surprise that many of the provisions contained in the draft Constitution and consequential legislation enshrine explicit mentions of statehood and autonomy, as well as refererences to what Quebec politicians have been deeming Quebec values. French is explicitly stated to be the only official language.The Canadian value of multiculturalism is explicitly rejected in favor of integration into the Quebec nation. So far, no real surprise.

But this really struck me: one of the provisions purports to amend a provision of the federal Constitution Act, 1867! WTF? Can they do that? That is a federal constitutional law, how is that not ultra vires for a provincial legislature?

I imagined the lawmaker may be wanting to use some loophole in the federal Constitution; I googled around and found this article, according to which Quebec once attempted to do this before. The author explains that according to section 45 of the Constitution Act, 1982, a province has jurisdiction to make amendments to its own constitution and that there is a line of reasoning that: 1) part of provincial constitutions is contained in the federal constitution; 2) section 45 allows a province to amend its own constitution; 3) ergo, a province may amend parts of the federal constitution that form parts of its own constitution. The article presents opposing viewpoints on the question of whether this interpretation is legitimate.

This interpretation seems hard to get one’s head around. How do you decide which part of the federal constitution is also part of a provincial constitution and which is not? Is Quebec likely to succeed in unilaterally exempting itself from a provision of the federal constitution?

2

Well, they already think they’re super important, calling their provincial legislature a national assembly.

Doesn’t Canada have an actual written and codified constitution, unlike the UK’s collection of documents, decrees, decisions, and traditions? What does the national consitution have to say on the matter?

3

Yes, it does. See the Constitution Act, 1982:

https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html

Note, though that we (in Canada) also pay a lot of attention to the unwritten traditions we’ve inherited from the UK. In short, it’s not quite as easy as looking at a printed document, no matter how much we drafted it, as the American Constitution is.

4

@Monty, Here’s what actually constitutes Canada’s system of government:

5

How much authority does the Supreme Court have to settle conflicts over provincial constitutions?

6

Broad authority, I would think. The Supreme Court of Canada has the effect of a constitutional court. It rules on cases that test different questions of constitutional law. I’m pretty sure it has jurisdiction over questions such as this one.

7

You’re correct. The Supreme Court of Canada (SCC) can, and has, settled questions of Canadian constitutional law, and it could in the instance too. Note that the SCC also settles all kinds of matters, both in public law and in private law. It is not strictly for constitutional matters.

8

Okay, I’ve made my way roughly halfway through the proposed bill. It was not an easy slog. Even though I’m reading the English version, it’s pretty thick language. Some observances on Part I:

This goes against the federal government’s Clarity Act S.C. 2000, c. 26, which deemed “50% plus one” to not be good enough. It would probably be fine for inside Quebec questions, such as “Should Quebec build another bridge across the St. Lawrence River to Quebec City?” but it would not work for matters on a federal scale, such as a referendum on leaving Canada.

There is a little-remembered power of the Canadian federal government: paramountcy. It basically says that the federal government can override any provincial legislation. This power is little-remembered, because it has not been used in decades, perhaps not even in a century. But it still exists. I have no doubt that if this bill was passed and Quebec tried to invoke “50% plus 1” on a separatism referendum, the feds would use their paramountcy power to strike down the result because it did not conform with the Clarity Act, where “50% plus 1” is not good enough.

Moving on …

The key word here is “abroad,” which is not defined in the proposed legislation. (Note that many legislative Acts have at the beginning, a list of definitions of terms as used in the legislation. This act has no such list, so we don’t know what “abroad” means, in this bill’s context.) If “abroad” means in other provinces of Canada, then sure. But if it means in foreign countries, then we run into problems.

The Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11, to give it its full title (hereinafter “Constitution”), states nowhere about external affairs, because the UK looked after those in the days when the UK drafted it (i.e. 1867), but Canada took the initiative and established foreign relations on its own prior to the Statute of Westminster, 22 & 23 Geo 5, c. 4. Specifically, in Washington DC in 1927, Paris in 1928, Tokyo in 1929. Westminster merely gave legitimacy to what Canada had already done. I guess the UK could not stop what it saw was coming: more external affairs power divested to the Dominions.

Phew! That was a lot. I haven’t even started on Part II of Quebec’s bill yet. But I need a rest.

9

(very vague memory) Wasn’t the Clarity Act a response to the last time Quebec tried to assert the “50% plus one” standard for secession, back in the early to mid 90s or thereabout? I have a foggy recollection on something like this.

10

Yes, that was 1995. Jacques Parizeau tried to claim that the margin of victory was 50% plus 1. Didn’t matter in the end, as the “stay in Canada” side won by a small margin.

11

Since it would be an act of the Quebec assembly, it can be overwritten by them at any time. It is presumptuous to call it a constitution. A constitution is a document that details what various parts of the government, but especially the legislature can and cannot do and this does nothing of the sort.

12

This is also true of the US, in what’s called “Common Law”. Though there’s been a trend, over the nation’s history, to replace common law with officially codified law, but I think that there’s still some nooks and crannies of jurisprudence where it’s still relevant.

This is also true of the US Supreme Court. It’s just that it’s the constitutional cases that tend to have the most impact, and hence are most remembered.

13

Um … Canada is a common law country. We rely on precedent, not a codification. When I refer to “traditions,” I mean things like the Ceremony of the Black Rod. Not codified anywhere, but a traditional part of our government.

14

I believe this reflects a misunderstanding of what constitutes “Common Law” in contrast to “Civil Law,” as it’s practiced in countries with a Napoleonic legal tradition (e.g. France, my own country of Luxembourg, most places in Europe, etc).

In the Civil Law framework, the only thing that matters is the law itself. When a matter is adjudicated, court officials consider the structure and wording of the relevant law or laws, and applicability to the current matter. They may optionally look at other cases for guidance in how the law was interpreted and applied, but those other decisions are not binding. Each case is considered to be its own unique circumstance, to be judged independently.

By contrast, in Common Law, courts consider the law or laws as written, and the body of accumulated caselaw which demonstrates how the laws are to be interpreted and applied. The decisions of peer courts are influential, and the decisions of higher courts are binding.

It’s therefore incorrect to say that, in the United States, there is a “trend” to “replace common law” with “codified law.” The formal applicability of caselaw is inherent to the Common Law framework, and that is not changing. It’s fundamental to the American system and the American understanding of how laws “work.”

Which is why, if you as an American are ever exposed to a Civil Law type of proceeding in France or anywhere else, it will feel alien to you. There may be passing references to past matters, but not in the form of citations that dictate how the law is understood and applied, as in the U.S. or other Common Law countries.

The U.S. might be adding more formality to its legal codes, but as long as binding caselaw is in the picture, it’s a Common Law system. Period.

15

Thank you, @Cervaise, you have summed things up nicely. Canada is a common law country, and we use common law here in Canada. Precedents, and all. I’ll refrain from saying more.

I’m still working my way through the Quebec bill. I’ll undoubtedly have more comments later.

16

I second that, @Cervaise explained the difference between how “common law” and “civil law” jurisdictions work, vey well and in plain terms.

17

Thanks to both of you. The Civil Law system bent my brain when I relocated from the States to Europe, so I made a deliberate attempt to wrap my head around it. Glad to see my attempt was successful enough to allow me to make sense of it for others.

18

I’m definitely not a lawyer but my understanding is Quebec is not a common law state at the provincial level, it uses a civil law system.

I imagine this gets fuzzy in cases where both federal and provincial matters intersect, but the legal structure provincially is civil (not that I fully understand that!).

I’m not a fan of our current government and I suspect I’d object to all sorts of claims about Quebecois “values” in this “constitution”. I’ll believe them on their commitment to secularism, for example, when they replace the Québec flag with one that doesn’t represent the church (cross), the Virgin Mary and heaven (blue field) and when they rename all public schools under their jurisdiction to so something that isn’t Saint(e) Something or Other.

19

Correct, but only partially so. Quebec uses civil law in matters of private law: contracts, wills and estates, and similar.

Quebec does use common law in matters of public law: criminal, constitutional, administrative (in certain instances), and the like.

20

To be precise, Quebec’s civil is based on the old Roman code since Quebec was colonized before the French revolution. Not that it much matters.

To clarify another point, the word nation (and by extension National Assembly) has a different meaning in Quebec than, say in the US. It refers to a group of people who share a common ancestry, history, language, usually religion. In the US nation is more or less the same as country (or state, if that word didn’t have another meaning). So the Quebec nation specifically excludes immigrants, anglophones, and natives.