Aiding and Abetting Constitutional Vandalism

The federal Department of Justice encourages constitutional illegitimacy

The federal Department of Justice has updated its consolidation of the Constitution of Canada to reflect several recent purported amendments to it by the provinces of Quebec and Saskatchewan.

The problem? Provinces have no authority to unilaterally amend the Constitution of Canada, as I explain in a recent piece in the Osgoode Hall Law Journal (it’s open access and available here). Under the constitutional amending formula, provinces only have the authority to make amendments to their own provincial constitutions, and while those might pertain to certain matters reflected in the national constitution’s text, provinces have no power to directly amend that text.

The amendments at issue include the purported insertion of clauses recognizing: 1) that “Quebecers form a nation” (s90Q.1) and that French is the official language of Quebec (90Q.2), 2) affirming Saskatchewan’s “autonomy with respect to all of the matters falling under its exclusive legislative jurisdiction pursuant to this Act” and clauses specifically emphasizing its dependence on agriculture, non-renewable resources, etc. and its ability to control the development of those resources, and 3) a clause asserting that the constitutionally-mandated oath of allegiance for all members of both houses of Parliament and all provincial legislative assemblies does not apply to Quebec.

These amendments required, at minimum, recourse to the bilateral amending procedure (requiring resolutions of the federal House and Senate, in addition to the relevant provincial assembly), although to the extent that the first amendment addresses Canada’s status as a multinational federation, and the second is a statement relating to (even if only affirming) the division of powers, and the third a binding constitutional requirement reflecting the shared monarch and source of authority under our constitutional system, in fact what is required is the general amending procedure for the first two amendments and the unanimity procedure for the third.

By recognizing the amendments as textual changes to the Constitution of Canada, the DOJ provides them with an illegitimate stamp of authority. DOJ lawyers might argue that until the courts rule on the validity of these amendments, they should be reflected in the consolidation, but this would be a poor argument. Would they recognize a purported law from a bill that had not received royal assent? Because the unconstitutionality of these provisions are just as blatant a failure to adhere to the procedural requirements of the amending formula as any purported law not passed by proper procedure would be invalid on that basis.

Interestingly, as Lyle Skinner pointed out on ‘X’, the federal consolidation has italicized the new entries and included footnotes stating that “These provisions aim to amend the constitution of the province under the unilateral amending procedure set out in section 45 of the Constitution Act, 1982.”

This is puzzling. If they are indeed section 45 amendments, then they should not be reflected in the text of the Constitution of Canada (despite their purporting to directly amend it). There have been many section 45 amendments (even if not all explicitly stated as such) to provincial constitutions across all provinces, and they have never resulted in textual changes/additions to the national constitution (nor indeed do any constituent subunits across the world have any authority to unilaterally amend the text of their national constitutions).

It may be that the DOJ recognizes the illegitimacy of these purported amendments, and so has taken some measures to distinguish them from the rest of the text, but then the decision to give them any recognition along these lines is all the more dubious.

The most frustrating aspect of this whole saga is the federal government’s acquiescence to these changes. Because they are largely symbolic provisions, they are unlikely to be subject to constitutional challenge from individuals or grassroots organizations - the shame is that neither the federal government nor any other province in the nation has chosen to employ the reference procedure to ask a court about any of this. We can’t even lift a finger to protect the rule of law or the constitution on the most fundamental question a constitution contains: who gets to write the rules pertaining to higher law, that law against which all other law is judged?

The result is a constitution vandalized, and the aiding and abetting of that vandalism by the federal Department whose first and foremost duty should have been to uphold the basic principles at stake.