A few years ago, I proposed, with others, recourse to the unilateral modification of certain aspects of the old text of 1867, in particular in the pages of the Homework. The thing had jostled many of them, because it imposes a real reflection on the place where the deeply dispersed and intertwined constitutions of the federation, the federated entities and the federal institutions begin and end.
Since then, Quebec has followed suit with the Official and Common Language Act (Bill 96) and, last week, with the definitive replacement of the oath to the king by that to the people of Quebec and its constitution.
To denounce such an explicit or direct modification of the 1867 text, political scientist Emmett Macfarlane called Quebec’s action “constitutional vandalism”.
For his part, former senator André Pratte spoke of “constitutional sabotage” in the pages of The Press. As for the members of the Liberal Party of Quebec, they certainly supported the substance of the reform, but criticized the editorial technique used.
A living text
The process is however very simple. Quebec combines, on the one hand, recourse to the unilateral modification procedure which is explicitly provided for in articles 44 and 45 of the Constitution adopted in 1982 (without the agreement of Quebec) and, on the other hand, a legal technique (or editorial) which consists in directly modifying an existing text (that of 1867) rather than contradicting it in a more recent text. Moreover, Ottawa has also used this process many times in the past without causing the slightest outcry.
There is, however, something paradoxical in the way in which certain observers and specialists of Canadian constitutional life “celebrate” all the evolutions of the Constitution, which they qualify, with a touch of lyricism, “a living tree”, but are offended to see Quebec inscribe the changes that are its own directly in shared texts.
According to the criticisms of the bill noh4 — now sanctioned — Quebec is invited to exercise its share of constitutional autonomy elsewhere, far from the gaze of the rest of the federation, that is to say in more recent texts which contradict the older ones.
Now, although this way of proceeding is also possible (the abolition of the Legislative Council in 1968 is proof of this), it is not the only one available to us. There is no doubt that an indirect modification would probably have been less disturbing for the rest of Canada, because it would have been less visible. Nevertheless, it would have accentuated, a little more, the obsolescence of the constitutional texts by widening the gap between what can be read there and the law in force.
Dispersed and intertwined constitutions
To use a phrase dear to our colleague Jean Leclair: there has long been a “fetishist obsession with the constitutional text” in Quebec. Where the rest of the federation was satisfied with a partial codification, a dispersion of sources and a disorder accentuated by the presence of numerous obsolete provisions, Quebec stood apart by demanding an ambitious constitutional modernization. It was the big night dreamed of by Quebec federalists: a renewed and improved text.
However, now that Quebec acknowledges the rigidity of the constitutional amendment procedures imposed — without its consent — by the 1982 patriation, as well as the lack of political will on the part of the rest of the federation to negotiate changes, it is rediscovering (although small consolation) the portion of British heritage contained in the Canadian Constitution.
Quebec thus exploits, to its advantage, not only the margin of autonomy that the unilateral amendment allows it, but also the disorder of its intertwined constitutional sources.
Since the norms that organize it are not confined to a single section of the Constitution of the federation, the dispersion of sources leads Quebec to intervene, from time to time, in various portions of the Constitution. As long as it is acting within its powers, where Quebec registers this action is a matter of editorial aesthetics, not constitutional validity.
Revisiting the part of British heritage
Certainly, in most other states, the modification of a Constitution by simple express mention in a law would be heresy. However, this is not the case in the British tradition, which is at the very foundation of the Canadian constitutional order. The parliaments of the British colonies, both before and after 1867, were given a limited and supervised power to modify certain aspects of the laws which, like that of 1867, served as their constitution.
Far from being an anomaly of history, this unilateral capacity to modify the constitutional texts was consolidated and widened in the federal Parliament, in 1949, then explicitly confirmed by the adoption, in 1982, of sections 44 and 45 of the Constitution of 1982. The latter now place or move these unilateral procedures side by side and on an equal footing with the three other procedural paths allowing the modification of the texts of the formal Constitution.
Obviously, one can debate the extent of the field of application of this procedure. The rules that are modified in this way are most certainly limited by the scope of application of the other procedures for modifying the Constitution. However, in a legal order where the constitutions of Quebec, the federal government and the other provinces are deeply dispersed and intertwined, recourse to the unilateral procedure cannot be confined to a specific subtitle or heading of the 1867 text.
In short, we must not confuse the editorial form and the substance of things. The decisive question for the future of Bill no.oh 4, adopted last week, is whether Quebec has the power to modify this rule for the purposes of organizing its Parliament. If this is the case, the fact of inscribing the change directly or indirectly in the old text of 1867 does not alter the validity of the text.
Moreover, this change explicitly inserted into the text of 1867 has nothing to do with an operation of “sabotage” or constitutional “vandalism”. On the contrary, ensuring that this text is up to date, that it describes as much as possible the real state of the law, promotes the health, dynamism and durability of constitutional texts.
Curiously, for some, it is better to see the text of the Constitution Act, 1867 wither due to the proliferation of obsolete standards, contradicted by more recent and dispersed laws, than to accept that Quebec affirm its difference and its distance from the Canadian monarchical folklore recorded in common texts.