Quebec’s Bill 96: The Latest Chapter on Quebec and the Constitution

Two proposed amendments have sparked a new (but familiar) debate in Canada about the constitutional recognition of Quebec’s specificity. Ambiguity abounds on the correct constitutional procedure to pass these amendments, and whether they carry legal or merely symbolic powers. What is more certain, however, is the likelihood that, if passed, the constitutional amendments would be immediately challenged on in the Quebec courts – writes Sujit Choudhry.

Canada has entered another round of constitutional politics regarding the constitutional recognition of Quebec’s specificity. Since the 1960s, Quebec nationalism has been centred on cementing the place of French as the common language of economic, political and social life in that province – all rooted in the idea that Canada is a plurinational state containing multiple nations.  The latest episode is Bill C-96, which would amend the Constitution Act, 1867, to insert two new provisions: (a) Section 90Q.1, “Quebecers form a nation.”; and (b) Section 90Q.2, “French shall be the only official language of Quebec. It is also the common language of the Quebec nation.”

The amendments would be made to Part V of the Constitution Act, 1867, which governs “Provincial Constitutions”.  Part V sets out basic details regarding legislative and executive power at the provincial level.  Their key effect is for the provinces to be parliamentary monarchies, as Canada is at the federal level. The courts have interpreted provincial constitutions to also encompass some provincial statutes that structure government. The amendments address identity and language, which are not topics currently addressed by Part V or statutes understood to be part of provincial constitutions.

The amendments have provoked an intense debate: do they augment Quebec’s powers to promote the use of French or are they strictly symbolic?

The amendments have provoked an intense debate, over whether they will have the legal effect of augmenting Quebec’s powers to promote the use of French, or whether their impact is strictly symbolic. Underlying this substantive debate over the legal effect of these amendments is a procedural one over the correct constitutional mechanism to adopt them. In this piece, I set out and analyze the opposing views on these issues – which are certain to come before the Canadian courts.

Canadian Constitutional History

The debate over Bill 96 has to be understood against the backdrop of Canadian constitutional history, both in relation to federalism and Canada’s constitutionally entrenched bill of rights, the Canadian Charter of Rights and Freedoms (the Charter).

Canada is a plurinational federation because the boundaries of the province of Quebec were drawn so that francophones would constitute a majority therein and could not be outvoted by the anglophone majority in Canada as a whole. Moreover, under the Constitution Act, 1867, the courts have implied from jurisdiction over certain institutions or relationships the power to set the language in which those institutions operate or those relationships occur. This has given Quebec the legislative power to ensure the survival of a francophone society by creating a complete set of institutions that operate in French across the economy, politics, and public administration.

For example, Quebec enacted the Charter of the French Language making French the exclusive language of work within the civil service, flowing from provincial jurisdiction over provincial public administration. Quebec’s language legislation also promotes French as the internal working language of medium- and large-sized business in the province through Quebec’s authority to regulate commercial transactions and private sector workplaces. The responsibility for primary, secondary and postsecondary education also lies within provincial jurisdiction, and this grants Quebec power over the language of instruction and curriculum, and to create French-language universities, an indispensable support for the use of French in economic and political life.

Until the 1960s, Quebec’s constitutional claims had been aimed at defending its existing jurisdiction. However, in the 1960s, Quebec’s constitutional goals shifted to expand its powers to build a modern Quebec. This was a defensive response to growth in federal economic and social policy after World War II, which increased the importance of a federal bureaucracy that worked in English in which francophone Quebeckers were a small minority. Another factor was massive urbanization and industrialization within Quebec in a context where anglophones dominated positions of economic leadership and many of the professions.

The Canadian Charter of Rights and Freedoms was the federal government’s response to Quebec nationalism.

The Canadian Charter of Rights and Freedoms was the federal government’s response to Quebec nationalism, and was enacted in 1982. It was intended to function as the spine of a pan-Canadian constitutional identity and common citizenship, whereby citizens share rights under a bill of rights irrespective of language or province of residence. In addition, the Charter imposes legal constraints on linguistic nation-building by Quebec, through entrenching rights to inter-provincial mobility and minority language education for children. Both sets of rights are exempt from Canada’s legislative override (the “notwithstanding clause”), which allows the federal parliament or provincial legislatures to override sections of the Charter for five years – and Quebec objected to both, precisely because they are not subject to the override.

Meech Lake and the Distinct Society Clause

The Charter and Quebec nationalism have been the main instruments of competing nation-building projects within Canada.  Prior to Bill 96, these two projects came into conflict over the “distinct society clause”, a constitutional amendment proposed in 1986 that would have mandated that the Constitution be interpreted to recognize “that Quebec constitutes within Canada a distinct society” and would have affirmed “[t]he role of the legislative and Government of Quebec to preserve and promote the distinct identity of Quebec”. The distinct society clause bears a striking resemblance to the proposed s. 90Q.1, that “Quebecers form a nation.”

Outside Quebec, the fear was that the distinct society clause would cause unequal application of the Charter, by providing additional constitutional support for Quebec’s linguistic nation-building. Underlying this resistance was the view that the Charter was the core of a common Canadian citizenship, and the potential for its unequal application was an assault on a basic, non-negotiable term of the Canadian social contract. Within Quebec, the distinct society clause mattered a great deal because it was the first time the Constitution would explicitly acknowledge a view of what Canada was for – i.e., that the institutions of plurinational federalism are designed to protect Quebec’s linguistic distinctiveness.

The constitutional reform package (the Meech Lake Accord), of which the distinct society clause was the major component, failed in 1990 because of opposition to the clause outside of Quebec. To a generation of Quebec nationalists, the fall of the Meech Lake Accord set up the Charter as an obstacle to, rather than as a central component of, how many Quebeckers understood the nature of their relationship with Canada.

Bill 96

It has been over three decades since the demise of the distinct society clause. However, it is a crucial backdrop to the debates over Bill 96.

Quebec has taken the view that ss. 90Q.1 and 90Q.2 can be added to the Constitution Act, 1867 via the procedure set out in s. 45 of the Constitution Act, 1982, which authorizes provincial legislatures to unilaterally adopt amendments “amending the constitution of the province”. Moreover, Prime Minister Justin Trudeau stated that “[a]n initial Justice Department analysis concluded Quebec can go ahead with the changes”. On 16 June 2021, the federal Parliament recently passed a motion that agrees with Quebec’s legal position, by an overwhelming majority (281 to 2).

Quebec might rely on s. 90.Q.1 in interpreting the federal division of powers asymmetrically or to provide additional justification to limit Charter rights.

However, upon closer examination, the constitutional issues are more complex. First consider s. 90Q.1. On one view, s. 90Q.1 would not be a change to the “constitution of a province”, which is limited to structural provisions. Section 90Q.1 is not this kind of provision. Rather, it is like the distinct society clause, which Canadian governments assumed at the time it was proposed required adoption pursuant to the general amending formula under s. 38 of the Constitution Act, 1982. The general amending formula requires the consent of the legislative assemblies of two-thirds of the provinces representing at least 50% of the population, plus the consent of the federal House of Commons and Senate. The view that the general amending formula is required proceeds from the assumption that s. 90.Q.1 impliedly authorizes Quebec to take decisions it does not have the power to take now. For example, Quebec might rely on s. 90.Q.1 in interpreting the federal division of powers asymmetrically. And Quebec could possibly rely on s. 90.Q.1 to provide additional justification to limit Charter rights, above and beyond what is already permitted by the Charter –  for example, without need for recourse to the notwithstanding clause, which has been invoked to shield the other provisions of Bill 96 from constitutional challenge. For example, Bill 96 would require that French language on commercial signage be “markedly predominant”, instead of the current “sufficient presence of French” requirement – which the Supreme Court of Canada’s famous Ford judgment would not permit.

But there are arguments on the other side. It has been suggested by former Liberal Quebec Intergovernmental Affairs Minister Benoît Pelletier that “the constitution of the province” can include symbolic provisions, such as s. 90Q.1. Moreover, Ford held that the promotion of French as the common language of Quebec was a legitimate reason to limit Charter rights, in which case s. 90Q.1 merely codifies what is already the law. Moreover, while the distinct society clause would have required use of the general amending formula, that is because it would have been added as a new s. 2 of the Constitution Act, 1867, governing the interpretation of the whole constitution. Quebec argues that s. 90Q.1 would not govern the interpretation of the whole constitution but would, rather, simply be a clause of the constitution of the province, and is strictly symbolic. However, this is undercut by Quebec’s Premier Legault’s assertion (within Quebec) that s. 90Q.1 would expand Quebec’s powers.

In relation to s. 90Q.2, s. 43(b) of the Constitution Act, 1982 sets out a mechanism for bilateral constitutional amendments concerning provisions on the use of English and French within a province, which requires resolutions passed by the relevant provincial legislative assembly and both the House of Commons and Senate. Section 90Q.2, I have argued, falls under s. 43(b). There is a good reason for this – minority language rights are central features of the Canadian constitutional bargain. One of these provisions is s. 133 of the Constitution Act, 1867, which makes English an official language of Quebec for legislative debates, legislation, and judicial proceedings. That provision cannot be changed by Quebec unilaterally. Quebec seems to want to do indirectly via s. 45, authorizing provincial legislatures to unilaterally adopt amendments to a provincial constitution, what it cannot do directly via s. 43. The response to this argument is that s. 133 cannot be changed unilaterally through a s. 45 amendment, and that s. 90Q.2 would have to be interpreted to not interfere with s. 133. But it has been countered that outside s. 133, s. 90Q.2 could be used to sharply curtail language rights for Quebec’s anglophone minority that are rooted in statute.

It is very likely that immediately after they are enacted, the new constitutional amendments would be challenged on procedural grounds in the Quebec courts. The case would almost certainly make its way to the Supreme Court of Canada.  As is apparent, debates over the correct constitutional procedure to adopt ss. 90Q.1 and 90Q.2 turn on differing views about their legal effects. The Supreme Court may read the provisions as conferring new powers on Quebec, in which case it would strike them down. Alternatively, they may uphold them by construing them narrowly.

Sujit Choudhry practices constitutional law in Canada and, globally, at Huron Chambers. He founded and directs the Center for Constitutional Transitions