Saskatchewan has joined the unconstitutional amendment party

The government of Saskatchewan has introduced The Saskatchewan First Act which, among other things, purports to add new provisions to the Constitution Act, 1867 to reinforce Saskatchewan’s “autonomy with respect to all of the matters falling under its exclusive jurisdiction”, to recognize it “is and always has been dependent on agriculture, and on the development of its non-renewable natural resources, forestry resources and electrical energy generation and production” and that control of these is “critical to the future well-being and prosperity of Saskatchewan and its people.”

Here Saskatchewan follows the unconstitutional steps of Quebec’s Bill 96, which similarly purported to add provisions to the 1867 Act recognizing Quebec as a nation and French as its sole official language.

Yet, as I write in a forthcoming paper in the Osgoode Hall Law Journal, provinces have no authority under the amending formula to make unilateral changes to the Constitution of Canada.

Quebec and now Saskatchewan claim that adding these provisions are merely additions to the ‘constitution of the province’ (as provided for in section 45 of the amending formula in the Constitution Act, 1982), but this incorrectly conflates ‘the constitution of the province’ with the “Provincial Constitutions” section of the 1867 Act. That section merely includes a set of specific establishing provisions for elements of the constitution of the province. It is not an empty vessel to be filled by unilateral provincial additions. For example, many of the provisions establish the provincial lieutenant governors and set out their powers. Changes to the office of an LG require unanimous consent under section 41 of the amending formula.

Other provisions in that section were needed because the division of the Province of Canada into Ontario and Quebec at Confederation required establishing legislatures for those new provinces (notably equivalent provisions weren’t needed for Nova Scotia or New Brunswick, their legislatures were merely recognized in a single provision). Quebec was later free to abolish its upper house (the Legislative Council) by unilateral changes to its provincial constitution, not by purporting to make direct changes to the text of the 1867 Act but by rendering the establishing provisions impliedly repealed (the federal Department of Justice consolidation of the Act uses the term ‘spent’).

Provinces only have the authority to make unilateral changes to their own constitutions. Provincial constitutions are comprised largely of ordinary statutes and unwritten constitutional conventions (i.e. responsible government and those conventions relating to government formation, the relationship between cabinet and the legislative assembly, etc.). They tend to relate to those matters affecting core provincial institutions (the executive, the legislative assembly, the electoral system, etc.).

Where necessary, parts of these provincial constitutions were also established by specific provisions of the Constitution Act, 1867 as well as other statutes that are part of the Constitution of Canada, like the Saskatchewan Act (which is a statute of the federal Parliament and which Saskatchewan also seeks to amend here, dubiously). But these are not the same as ‘the constitution of the province’ for the purposes of the amending formula.

The Acts and orders of the Constitution of Canada are not empty vessels to be filled by individual provinces unilaterally. What these provinces are attempting is to have the national constitution confer recognition of matters to which none of the other partners of Confederation agreed. Some of these matters require recourse to the general amending procedure (the House of Commons, the Senate, and at least seven provinces representing at least half the population). Others might be added by employing the bilateral procedure, for certain issues affecting one or more, but not all, provinces (the House of Commons, the Senate, and the relevant legislative assembly). Indeed, even just to have its name change recognized in the Constitution of Canada, Newfoundland and Labrador (formally Newfoundland) needed recourse to the bilateral procedure.

In no circumstance can provinces unilaterally add new provisions to any of the Acts or orders comprising the Constitution of Canada (indeed, the text of the amending procedures confirm this, allowing amendments to the “Constitution of Canada” for all procedures except section 45, which only permits changes to “the constitution of the province”).

My forthcoming Osgoode paper explores in much more depth the relevant provisions, the history and practice of constitutional amendment, and the conceptual distinction (and in some cases overlap) between the Constitution of Canada and provincial constitutions. Feel free to click the link above to read it.

What’s especially worrying here is that when Quebec passed Bill 96 the federal government tucked its tail between its legs (and its head in the sand), and essentially acquiesced to the change. Except it has no authority to do that. Absent the use of the appropriate amending procedure, the amending provisions in Bill 96 are still unconstitutional. By trying to avoid a fight with Quebec, the federal government has essentially invited blatantly unconstitutional attempts to change the Constitution from other provinces.

As I wrote in a previous post on the constitutional requirements that members of provincial assemblies give an oath to the King, we cannot allow governments to simply flout the requirements of the Constitution. This is true even if these particular provisions floated by Saskatchewan appear substantively meaningless (in that they arguably merely affirm the existing division of powers). The Constitution is the means by which we limit and order government power and set out the machinery of government. The amending formula is the key to changing those rules. Flouting the amending formula is thus the most fundamental breach of the rule of law, and of democracy, federalism, and any number of other constitutional principles.

If the federal government won’t take this seriously, we can only hope the courts do.