Section 159 of the current Quebec bill on “the official and common language of Quebec, French” intends to amend the Constitution Act, 1867 by introducing in it what follows:
FUNDAMENTAL CHARACTERISTICS OF QUEBEC
90Q.1. Quebecers form a nation.
90Q.2. French is the only official language of Québec. It is also the common language of the Quebec nation.
This scheme has been referred to as a “find” and a “coyote’s trick.” But what is it really? Three clarifications must be made.
First, Quebec is not passing an amendment to the “Canadian constitution” in the sense of the “Constitution of Canada”, meaning the “supreme law” of the land pursuant to section 52(1) of the Constitution Act, 1982. It is merely amending the “constitution of the province” pursuant to section 45 of the Constitution Act, 1982 (formerly section 92(1) of the Constitution Act, 1867). (On this crucial distinction, see the short article by Patrick Baud, Éléna Drouin, and me in the Constitutional Forum).
Second, it would also be a mistake to confuse the legal effects of an amendment with its placement. Most of the time, an amendment alters, and thus has effects upon, a legal text in which it is not formally located. For an amendment lies in the amending instrument, save a legal, and thus formal and official, consolidation of the amended text. This is why the placement of an amendment must never be confused with how an administrative consolidation reads. For an amendment that has been incorporated into the amended text by way of a merely administrative consolidation (by the federal Ministry of Justice consolidating our two main constitution acts, for instance) does not alter the legal locus of the amendment, which remains the amending instrument. Only a formally legal, and thus official, consolidation can do so. Moreover, there can be no official consolidation of our major constitutional acts, which were originally enacted as British imperial statutes, as the power to amend them is fragmented. No coordination of the various amending powers involved – such as what is contemplated at section 55 of the Constitution Act, 1982 for the enactment of a French version of “portions” of our constitution,for instance – can substitute itself to this legal constitutional consolidation authority our country is lacking. Save a constitutional amendment – pursuant to either section 38 or 41(e) – the consolidation of our constitutional laws is doomed to be unofficial. Therefore, if the Constitution Act, 1867, for example, is amended by proclamation of the Governor General (under sections 38, 41, 42 or 43 of the Constitution Act, 1982, which provide for the true constitutional amendment, meaning that of the supreme law), then the amendment will be formally and officially found in the proclamation itself (hence interpretive section 61 for example). If (depending on the case) it is instead amended by federal statute (under section 44), the amendment will be found in the amending federal statute. The same logic applies, of course, to its amendment by provincial statute (under section 45).
Hence, not only is it not true that Quebec is about to amend the supra-legislative “Canadian constitution,” but legally speaking, the amendments it claims to be able to make to the Constitution Act, 1867 would only be found in its own provincial and formally ordinary legislation.
Third, the Quebec legislature may not make French the sole official language in the province. There is little doubt that, by virtue of section 45 of the Constitution Act, 1982, the Quebec legislature has the competence to amend the “constitution of the province”, a legal concept I will clarify in my next post. But this formally ordinary legislative competence over the province’s executive and legislative powers in no way can conflict with the “Constitution of Canada” as “supreme law”. The latter is our common and formally supra-legislative constitution, which is referred to at para 52(1) of that same Constitution Act, and which renders “any law that is inconsistent” with it “of no force or effect” – something the Supreme Court of Canada as held to mean “invalid” (Re Manitoba Language Rights,  1 SCR 72). This is why the attempt to make French the sole official language of the province would be unconstitutional. It would constitute an amendment to Canada’s supreme law (the true meaning of “the Constitution of Canada”) and – something which is forbidden by section 52(3) – would run afoul of the amendment process set out therein, specifically sections 41 and 43, which provide as follows:
41 An amendment to the Constitution of Canada in relation to the following matters may be made by proclamation issued by the Governor General under the Great Seal of Canada only where authorized by resolutions of the Senate and House of Commons and of the legislative assembly of each province: […] (c) subject to section 43, the use of the English or the French language[.]
43 An amendment to the Constitution of Canada in relation to any provision that applies to one or more, but not all, provinces, including […] (b) any amendment to any provision that relates to the use of the English or the French language within a province, may be made by proclamation issued by the Governor General under the Great Seal of Canada only where so authorized by resolutions of the Senate and House of Commons and of the legislative assembly of each province to which the amendment applies.
In other words, changing the relative status of the French and English languages in a province constitutes an amendment to the Constitution of Canada, which requires the mobilization, not of the legislature of the province, not of the federal Parliament, not even of both, but, ad hoc, of a special procedure involving the province’s legislative assembly, the House of Common and – although this is eventually optional by virtue of section 47 – the Senate, and which is fulfilled by and leads up to a “proclamation issued by the Governor General under the Great Seal of Canada”. Plainly, Quebec, be it through its legislature, is not constitutionally permitted to do it alone.
The formal constitutional status of English and French in Quebec is indeed set out in section 133 of the Constitution Act, 1867, which guarantees linguistic equality within the legislature, official legislative records and in all judicial proceedings. It reads as follows:
133 Either the English or the French Language may be used by any Person in the Debates of the Houses of the Parliament of Canada and of the Houses of the Legislature of Quebec; and both those Languages shall be used in the respective Records and Journals of those Houses; and either of those Languages may be used by any Person or in any Pleading or Process in or issuing from any Court of Canada established under this Act, and in or from all or any of the Courts of Quebec.
The Acts of the Parliament of Canada and of the Legislature of Quebec shall be printed and published in both those Languages.
Could a language be made any more “official” than this? Hardly. (On the specific scope of this constitutional provision, see the Blaikie decisions of 1979 and 1981, along with the McDonald decision of 1986.
Yet is not the Quebec legislature only intending to “declare” the official status of the French language in the province, and not to regulate its “use”? The answer to this objection is that an ordinary legislator – in the exercise of the jurisdiction provided for in section 45 of the Constitution Act, 1982, for example – may not, under the pretext of “declaratory” provisions, appropriate, in order to divert them, the incidental symbolic effects of the provisions of the Constitution as the supreme law of Canada. It is by virtue of the principle of constitutionalism, reiterated and confirmed by section 52(1) of the Constitution Act, 1982, that an ordinary statute cannot even subvert the incidental effects of the provisions of the supreme law. For this to be otherwise, it must be provided for (as in section 1 of the Constitution Act, 1982) or admitted according to a jurisprudential test (such as that in Sparrow, relating to the constitutional rights of aboriginal peoples in section 35 of the Constitution Act, 1982; or those relating to the resolution of disputes over the federative allocation of legislative powers). Apart from these exceptions, it must be remembered that the provisions of the supreme law (including their relationship to the validity of ordinary laws) must be interpreted in an “architectural”, functionalist, or teleological manner, in the light of their respective and proper purpose within a coherent whole.
The word “use” in section 43(b) of the Constitution Act, 1982 should therefore not be interpreted so literally and narrowly such that section 159 of Quebec Bill 96 be treated as a mere “declaration” of a single official language. In Reference re Supreme Court Act, ss. 5 and 6 (at para. 106), the majority emphasized that the assertion that a provision is declaratory does not preclude the possibility that it may be inconsistent with the Constitution of Canada if its purpose or effect is to amend the latter without complying with the procedures that apply. The clear functional nature of section 43(b) is to ensure that linguistic amendments in a province, first, receive the assent of at least the House of Commons as a federal parliamentary house and, second, are made pursuant to a special formal procedure that involves the Governor General. Portraying section 159 of Bill 96 as merely declaratory, then, does not alter the fact that both its purpose and effect amount to an amendment of the Constitution of Canada in relation to the use of French and English (any language is meant to be used) in the province of Quebec without going through the procedure set forth in section 43(b) – which, again, is contrary to section 52(3) and invalid under section 52(1) of that same Constitution Act, 1982.
At any rate, there is nothing merely symbolic in Bill 96’s intent and expected effects, since section 5 proposes to add the following section 7.1 to the Charter of the French Language:
7.1. In the case of a discrepancy between the French and English versions of a statute, regulation or other act referred to in paragraph 1 or 2 of section 7 that cannot be properly resolved using the ordinary rules of interpretation, the French text shall prevail.
This would be patently unconstitutional. In Doré v Verdun,  2 SCR 862, the Supreme Court of Canada confirmed that section 7(3) of the Charter of the French Language – which provides that the French and English versions of Quebec statutes “are equally authoritative” – was “in accordance with s. 133 of the Constitution Act, 1867 which requires that the statutes of the legislature of Quebec be enacted in both official languages and that both versions be equally authoritative and have the same status.” The proposed section 7.1 would undermine that equality of status and would thus constitute an amendment to the Constitution of Canada – something the legislature of Quebec, like any provincial legislature, lacks the authority to enact.
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