What’s behind Québec’s latest, and largely superficial, constitutional gambit

To those familiar with the constitutional wars of the 1980s and 1990s, this cuts awfully close to the “distinct society clause.” It was at the heart of the failed Meech Lake Accord, which didn’t obtain the required unanimous provincial consent.

Québec Premier François Legault recently shocked the Canadian legal community when he unveiled his new proposed Bill 96 on protecting the French language in Québec. Among other proposals, Legault announced the province plans to move forward with a constitutional change to the Constitution Act of 1867, with two clauses:

• Québecers form a nation. • French will be the only official language of Québec. It is also the common language of the Québec nation.

His basis for proposing these changes was to change Québec’s own provincial constitution, which can be altered with the so-called “unilateral” amending formula in Sec. 45 of the Constitution Act of 1982.

The idea appears to have come from Patrick Taillion, a professor of constitutional and administrative law at Université Laval, who made the proposal earlier this year.

To those familiar with the constitutional wars of the 1980s and 1990s, this cuts awfully close to the “distinct society clause.” It was at the heart of the failed Meech Lake Accord, which didn’t obtain the required unanimous provincial consent.

Fears of another constitutional crisis now loom. Despite this, there is probably less to Legault’s gamble than first appears.

Here are some answers to commonly asked questions about Legault’s move:

Can Québec act unilaterally?

With the usual caveats that experts will always disagree and no one can predict what the courts will do, the answer is almost certainly no. As many commentators have already noted, these changes go beyond what the Constitution’s unilateral amending formula allows Québec to do.

The clauses don’t pertain to the internal constitution of the Québec state, but would make a change to the constitutionally recognized nation of Canada and otherwise affect guarantees for official languages. Making these changes would likely require, at a minimum, the use of the Constitution’s 7/50 amending formula for the first proposed clause, and the consent of Ottawa for the second. The bilateral amending formula, incidentally, was how New Brunswick entrenched its bilingualism in the early 1980s.

And yet Québec’s unilateral move has, after some silence, been accepted by the federal government and all of the federal parties as within Québec’s jurisdiction. When the House of Commons faced a Bloc Québecois motion supporting Legault’s move, only Independent MP Jody Wilsonraybould objected. There appears to be no provincial opposition.

So is that the end of the story?

Again, no. Legault’s proposal is likely to fail in the courts if the proper procedures are not followed. Nor could the argument be made that the rest of the country has already “consented” via news conference.

This kind of change to the written Constitution would require a legislative act. Notably, Ottawa has accepted a unilateral move by Québec to do this, but hasn’t said it would consent to the change if consent is eventually required.

But Legault is probably not trying to trigger a constitutional crisis. He’s trying to avoid one.

He’s still the Québec premier. Being seen as tough when it comes to French language rights is central to his job. And don’t forget he’s up for re-election next year. His unilateral move has effectively let the rest of the country off the hook and avoided a major political collision. By merely asserting his right to do it, Legault has signalled he’s not interested in involving anyone else in Canada.

Prime Minister Justin Trudeau’s nod to his claim leaves this discussion for another day. For now, Legault can claim victory and move on to other topics that are bigger priorities. If Legault had really wanted to trigger a constitutional crisis, he would have asked for a constitutional conference with Ottawa and the rest of the country. There is no appetite for that.

Keep in mind the context of Legault’s proposals. They were announced in the middle of the COVID-19 pandemic. There was a curfew in Québec, and these proposals were made less than a week before Legault was due to announce the reopening of the province. The minds of the public are very much elsewhere.

Then why do it at all?

Legault is responsible for assuring Québecers about the linguistic security of French in Québec and standing up for his province. But it’s easy to forget that Legault is also a former PQ minister who swore off ever holding another referendum.

He’s come a long way on federalism, but he needs to find balance. This proposal has been characterized in Québec as Legault finding a middle ground between federalist and separatist voters.

What’s to lose? If Legault has read Québec voters correctly, he’ll be a political hero. But if — or when — this dies in the courts, there will be no other politician or other level of government to blame. And that keeps a lid on constitutional politics. For better or worse, the rest of the country appears more than willing to play along with Legault’s game.