The National Assembly adopted yesterday, without real debate, Bill 4 abolishing the obligation of deputies to take the oath of allegiance to the Crown, an obligation provided for in article 128 of the North America Act. British North (AANB). Everyone will rejoice, elected officials and the vast majority of Quebecers consider this oath to be archaic.
However, to achieve its ends, the Government of Quebec has chosen an ill-advised course, that of a unilateral amendment to the Canadian Constitution. The Legault government had already done the trick during the adoption of Bill 96, by unilaterally registering two additions to the AANB affirming that Quebec is a nation and that French is the only official language there. As in the affair of the oath, the substance was irreproachable, but the manner deplorable.
This tactic is part of an increasingly strong current, coming from several provinces, tending to treat the Canadian Constitution as if it were a quilt to which one can add or remove pieces without causing any consequences on the whole.
The long-term effect of this movement will be to erode this Constitution, which is nevertheless the primary foundation of the Canadian federal system.
Constitutional scholars are divided on whether a province has the right to unilaterally amend the Canadian Constitution in certain circumstances. Ultimately, it will be up to the Supreme Court to decide. Symbolically and politically, however, it can already be said that the impact of this approach could be considerable, and even backfire on the provinces.
So, in his Saskatchewan First Act, the government of Scott Moe proposes to modify the division of powers provided for by the AANB in order to extend the province’s exclusive jurisdiction, in particular over greenhouse gas emissions produced on its territory. If a province can arrogate powers in this way, what will prevent Ottawa from doing the same?
PHOTO JASON FRANSON, THE CANADIAN PRESS ARCHIVES
Danielle Smith, Premier of Alberta
The Alberta Sovereignty Act within a united Canada, passed Dec. 8 by the provincial legislature, authorizes the provincial government to ignore federal legislation that it deems unconstitutional or that “causes damage” to the province. In other words, Edmonton gives itself the right to ignore any federal policy that does not suit it, even if Ottawa is acting within its own jurisdiction.
The increasingly frequent use of the notwithstanding clause of the Canadian Charter of Rights and Freedoms proceeds from the same logic. Although this recourse is authorized by the Constitution, the Charter will necessarily be weakened if the provinces end up using it all the time. A bill of rights full of holes is not worth more than the paper it is written on.
Fundamental contract
It is worth remembering that in a federation, the constitution is the fundamental contract between the parties. Failure to comply with this contract has legal, political and symbolic consequences. Above all, if repeated, these violations weaken the contract and cause confusion and resentment.
The provinces, notably Quebec, cannot invoke the letter or the spirit of the Constitution in their bickering with Ottawa, as they regularly do (see the funding of the health care system), and otherwise choose to ignore or modify this fundamental agreement unilaterally.
In the case of the oath to the Crown, Quebec has decided to add to article 128 of the AANB, which imposes this requirement on federal and provincial parliamentarians, the following article: “Article 128 does not apply in Quebec. »
How many articles of the Constitution will the provinces be able to avoid without the agreement of their partners? If we continue in this direction, the political and symbolic value of the Canadian Constitution will decline from year to year. However, a federation without a strong constitution is seriously weakened.
The government’s strategy in the matter of the oath to the Crown is all the more regrettable because there was a simpler way to proceed, by way of an amendment to the provincial law.
This is how Quebec abolished the Legislative Council (the Quebec “senate”) in 1968. This is also how Quebec solidaire, in its bill 190, proposed to abolish the obligation to take the oath to the king ; it would have sufficed to modify the National Assembly Act.
Unfortunately, this was not seriously discussed in the Assembly since the debate on Bill 4 lasted only a few minutes. I have learned from my brief experience in the Senate of Canada that it is never a good idea for a Parliament to ram through a bill; mistakes, big and small, are inevitable.
While the country’s Constitution burns, the one who should be its main guardian, the Prime Minister of Canada, plays the fiddle, or worse, gives his blessing to the provinces. Is it indifference, calculation or weakness? Either way, the show is heartbreaking.