Provincial Constitutions, the Amending Formula, and Unilateral Amendments to the Constitution of Canada: An Analysis of Quebec’s Bill 96

Authors

Emmett Macfarlane, Department of Political Science, University of Waterloo

Document Type

Article

Abstract

This article critically analyzes provincial authority to unilaterally amend the Constitution of Canada. Via an assessment of the purported amendments in Quebec’s Bill 96, which would recognize Quebecers as a nation and French as the only language of the province, the article argues that provinces cannot make direct amendments altering, adding, or repealing provisions of the Constitution of Canada. This argument is reflected in the wording of the various constitutional amending procedures, the historical and contemporary constitutional practice, and the underlying purpose of, and fundamental distinction and complex relationship between, the Constitution of Canada as supreme law and the constitution of the province. Notwithstanding this argument, the article also analyzes the specific matters in the Bill 96 provisions and concludes that their addition requires recourse to an amending procedure other than section 45. Adding recognition of Quebecers’ status as a nation to the Constitution Act, 1867 exceeds the scope of provincial authority, in part because it would not reflect a statement by Quebec in its own provincial constitution, something it would be free to enact via ordinary legislation. Instead, what Quebec proposes is to confer such recognition by the entire country. The language provision requires recourse to either the bilateral procedure under section 43 or the unanimity procedure of section 41, given the express requirements of those amending procedures. Finally, the unilateral enactment of these amendments would be contrary to the constitutional architecture. The article concludes by briefly examining subsequent provincial attempts to amend the Constitution, finding them equally illegitimate.

Creative Commons License

This work is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 4.0 License.

Citation Information

Macfarlane, Emmett. "Provincial Constitutions, the Amending Formula, and Unilateral Amendments to the Constitution of Canada: An Analysis of Quebec’s Bill 96." Osgoode Hall Law Journal 60.3 (2023) : 655-697.
DOI: https://doi.org/10.60082/2817-5069.3926
https://digitalcommons.osgoode.yorku.ca/ohlj/vol60/iss3/4

References

1. Department of Political Science, University of Waterloo. My thanks to Patrick Baud and Erin Crandall for reading an earlier draft of this paper and providing helpful comments, to Maxime St-Hilaire and Marc-Antoine Gervais for spirited discussions on Twitter, and to the anonymous reviewers for their helpful comments. All remaining errors are my own.

2. Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Constitution Act, 1982].

3. See Reference Re Supreme Court Act, ss 5, 6, 2014 SCC 21 Reference Re Senate Reform, 2014 SCC 32 [Senate Reform].

4. Bill 96, An Act respecting French, the official and common language of Québec, 1st Sess, 42nd Leg, Quebec, 2021 (assented to 1 June 2022), SQ 2022, c 14 [Bill 96].

5. Constitution Act, 1867 (UK), 30 & 31 Vict, c 3 [Constitution Act, 1867].

6. Bill 96, supra note 4, s 159.

7. This article does not engage in an assessment of the normative desirability of including these provisions in the Constitution of Canada. For full disclosure, as it relates to the nation provision, the author believes that a subset of Quebec's population constitutes a nation in the sociological sense. But this cannot apply to the entire population of Quebec, which includes members of various Indigenous nations who cannot plausibly be considered part of a discrete Quebec nation.

8. See Emmanuelle Richez, "The Possibilities and Limits of Provincial Constitution-Making Power: The Case of Quebec" in Emmett Macfarlane, ed, Constitutional Amendment in Canada (University of Toronto Press, 2016) 164 at 164-65 [Macfarlane, Amendment]. https://doi.org/10.3138/9781442619005-010

9. See Peter H Russell, Constitutional Odyssey: Can Canadians Become a Sovereign People?, 3rd ed (University of Toronto Press, 2004) at 133-34, 203.

10. Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter].

11. Constitution Act, 1982, supra note 2, s 43(b).

12. Ibid, s 41(c).

13. Constitution Act, 1867, supra note 5, s 133.

14. See Jonathan Montpetit, "Quebec's Proposed Changes to Constitution Seem Small, but They Could Prompt Historic Makeover," CBC News (19 May 2021), online: www.cbc.ca/news/canada/montreal/quebec-canada-constitution- changes-language-bill-1.6031828 [perma.cc/9FY7-JGWJ].

15. See Justice Malcom Rowe & J Michael Collins, "What Is the Constitution of a Province?" in Christopher Dunn, ed, Provinces: Canadian Provincial Politics, 3rd ed (University of Toronto Press, 2016) 297 at 297.

16. See Richez, supra note 8.

17. CQLR C-12.

18. See Rowe & Collins, supra note 15 at 300.

19. This illustrates that in some instances, as with respect to the office of the lieutenant governor, there is overlap between the Constitution of Canada and the constitution of the province, as will be discussed below. For a short analysis of the distinction between the constitution of the province and the Constitution of Canada that generally accords with this analysis, see Ian Peach, "Quebec Bill 96: Time for a Primer on Amending the Constitution" (2021) 30 Const Forum Const 1. https://doi.org/10.21991/cf29424

20. Bill 96, supra note 4, s 159.

21. The government was reportedly advised by constitutional scholar Benoît Pelletier on the use of section 45. See Montpetit, supra note 14. See also Benoît Pelletier, "La loi no 96, une loi novatrice," Le Devoir (2 July 2022), online: www.ledevoir.com/opinion/idees/729207/idees-la-loi-no96-une-loi-novatrice [perma.cc/R3QL-8AFF].

22. See Constitution Act, 1982, supra note 2, s 38. Section 38 states: (1) An amendment to the Constitution of Canada may be made by proclamation issued by the Governor General under the Great Seal of Canada where so authorized by (a) resolutions of the Senate and House of Commons; and (b) resolutions of the legislative assemblies of at least two-thirds of the provinces that have, in the aggregate, according to the then latest general census, at least fifty per cent of the population of all the provinces.

23. Ibid, s 41. Section 41 states: 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: (a) the office of the Queen, the Governor General and the Lieutenant Governor of a province; (b) the right of a province to a number of members in the House of Commons not less than the number of Senators by which the province is entitled to be represented at the time this Part comes into force; (c) subject to section 43, the use of the English or the French language; (d) the composition of the Supreme Court of Canada; and (e) an amendment to this Part.

24. Ibid, s 42. Section 42 states: (1) An amendment to the Constitution of Canada in relation to the following matters may be made only in accordance with subsection 38(1): (a) the principle of proportionate representation of the provinces in the House of Commons prescribed by the Constitution of Canada; (b) the powers of the Senate and the method of selecting Senators; (c) the number of members by which a province is entitled to be represented in the Senate and the residence qualifications of Senators; (d) subject to paragraph 41 (d), the Supreme Court of Canada; (e) the extension of existing provinces into the territories; and (f ) notwithstanding any other law or practice, the establishment of new provinces.

25. Ibid, s 43. Section 43 states: An amendment to the Constitution of Canada in relation to any provision that applies to one or more, but not all, provinces, including (a) any alteration to boundaries between provinces, and (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.

26. Ibid, s 44. Section 44 states: Subject to sections 41 and 42, Parliament may exclusively make laws amending the Constitution of Canada in relation to the executive government of Canada or the Senate and House of Commons.

27. Ibid, s 45. Section 45 states: Subject to section 41, the legislature of each province may exclusively make laws amending the constitution of the province.

28. Ibid, s 47.

29. Ibid, s 45.

30. See An Act respecting the Legislative Council of Quebec, SQ 1968, c 9.

31. Legislature Act, RSQ 1964, c 6, as repealed by Legislature Act, RSQ c L-1. The provisions of the Legislature Act are now covered by the Act respecting the National Assembly. CQLR A-23.1.

32. Constitution Act, 1867, supra note 5, n 35.

33. See Quebec, Secrétariat du Québec aux relations canadiennes, Codification administrative de la Loi Constitutionelle de 1867 et du Canada Act 1982 (Government of Quebec, 2021) at 29 [Codification administrative]. However, the Quebec consolidation does make the claim, not recognized by Justice Canada, that an 1882 Act, the Act respecting the orator of the legislative council, "formally repealed and replaced" section 77 of the BNA Act (ibid at 139). See Act respecting the orator of the legislative council, SQ 1882, c 3. However, this claim does not hold up, as it seems to rely on provision 8 of that statute, which simply states, "The constitution of the Province of Quebec is amended in the sense of this act and every statutory enactment, contrary thereto, is repealed." Ibid, s 8. The legislation makes no specific reference to the BNA Act or to section 77. A similar claim is made with respect to the amendment of section 63, as regards the portion relating to Quebec and the appointment of the "Executive Council" in the 1882 Act concerning the Executive Council. Codification administrative, ibid at 131. See Act concerning the Executive Council, SQ 1882, c 2. Section 5 of that Act states, "All contrary constitutional provisions are amended in the sense of this act, and all statutory provisions contrary to this act are repealed." Ibid, s 5. It is possible that the claim simply reflects the "indirect" amendment of the provision, as the consolidation itself shows the text unaltered from the original in contrast to listing section 77 as "Repealed." Codification administrative, ibid at 27, 29.

34. Constitution Act, 1867, supra note 5, s 92(1).

35. Warren J Newman, "Defining the 'Constitution of Canada' Since 1982: The Scope of the Legislative Powers of Constitutional Amendment under Sections 44 and 45 of the Constitution Act, 1982" (2003) 22 SCLR (2d) 423 at 436 [W Newman, "Defining the Constitution"].

36. Ibid at 440.

37. See Re Authority of Parliament in relation to the Upper House, [1980] 1 SCR 54 at 71 [Upper House Reference]. The Court's narrow definition of the term "Constitution of Canada" contrasts with its broader statement five years earlier in Jones v AG of New Brunswick. [1975] 2 SCR 182 at 196. The definition provided by section 52 of the Constitution Act, 1982 subsequently overtakes either formulation.

38. "Constitutional Amendment by Legislation" in Macfarlane, Amendment, supra note 8, 105 at 115 [W Newman, "Constitutional Amendment"], citing Senate Reform, supra note 3.

39. See Constitution Act, 1982, supra note 2, s 52. Section 52 reads: (1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect. (2) The Constitution of Canada includes (a) the Canada Act 1982, including this Act; (b) the Acts and orders referred to in the schedule; and (c) any amendment to any Act or order referred to in paragraph (a) or (b). (3) Amendments to the Constitution of Canada shall be made only in accordance with the authority contained in the Constitution of Canada.

40. Peter Price, "Provincializing Constitutions: History, Narrative, and the Disappearance of Canada's Provincial Constitutions" (2017) 9 Perspectives on Federalism 31 at 36. https://doi.org/10.1515/pof-2017-0019

41. Ibid at 40.

42. Ibid at 41. See generally John George Bourinot, "Federal Government in Canada" (1889) 9 Can LT 217; WHP Clement, The Law of the Canadian Constitution (Carswell, 1892); DA O'Sullivan, Government in Canada (Carswell, 1887); The Honourable Justice TJJ Loranger, Letters Upon the Interpretation of the Federal Constitution Known as the British North America Act (1867) ("Morning Chronicle" Office, 1884).

43. The SCC has avoided an authoritative determination about whether the provincial constitutions of those two provinces are part of the Constitution of Canada.

44. See Price, supra note 40 at 44-45. See also E Douglas Armour, Book Review of The Law of the Canadian Constitution by WHP Clement, (1892) 12 Can LT 298 at 301.

45. See Arthur RM Lower, Colony to Nation: A History of Canada (Longmans, 1964); FR Scott, "The British North America (No. 2) Act, 1949" (1950) 8 UTLJ 201. https://doi.org/10.2307/824544

46. Price, supra note 40 at 49.

47. "The Strange Case of a Provincial Constitution: The British Columbia Constitution Act" (1984) 17 Can J Political Science 87 at 88. https://doi.org/10.1017/S0008423900051271

48. Ibid at 90.

49. Ibid.

50. See Maxime St-Hilaire, Patrick F Baud & Elena S Drouin, "The Constitution of Canada as Supreme Law: A New Definition" (2019) 28 Const Forum Const 7 at 9. The authors use this context to argue that we should discard the "document list approach" to defining the supreme law of the constitution as reflected in section 52 https://doi.org/10.21991/cf29374 ; (2) of the Constitution Act, 1982 and develop an alternative method to identifying supreme law and amendment of the Constitution of Canada (ibid at 7). My argument thus differs from theirs in fundamental ways.

51. An Act to amend and continue the Act 32-33 Victoria chapter 3; and to establish and provide for the Government of the Province of Manitoba, 1870, SC 1870 (33 Vict), c 3; British Columbia Terms of Union (Order of Her Majesty in Council admitting British Columbia into the Union, 16 May 1871); The Alberta Act, 1905, SC 1905 (4-5 Edw VII), c 3 [Alberta Act]; The Saskatchewan Act, 1905, SC 1905 (4-5 Edw VII), c 42.

52. There are various formulations on the relationship.

53. Alberta Act, supra note 51, ss 8-9, 11, 13-15.

54. "La modification et la réforme de la Constitution canadienne" (2017) 47 RGD 459 at 476, n 59. https://doi.org/10.7202/1042930ar

55. See "Legal Roadblocks to Proposals for a Quebec Constitution" in Richard Albert & Léonid Sirota, eds, A Written Constitution for Quebec? (Queen's University Press, 2023) 59. https://doi.org/10.1515/9780228014775-005

56. Ibid at 64.

57. "Defining the Constitution," supra note 35 at 459.

58. Jurisprudence further complicating all of this is discussed below.

59. Constitutional Law of Canada (Carswell, 2002) (2002 student edition) at 90.

60. Ibid.

61. "Defining the Constitution," supra note 35 at 487.

62. See Eugene A Forsey, "Provincial Requests for Amendments to the B.N.A. Act" (1966) 12 McGill LJ 397.

63. W Newman, "Constitutional Amendment," supra note 38 at 114.

64. See also Montplaisir c Québec (Procureur Général), 1996 CarswellQue 661 (WL Can) (Sup Ct) ; R v Somers (1997), 3 WWR 107 (Man QB).

65. See Forsey, supra note 62 at 398.

66. Ibid at 398.

67. See e.g. Legislative Assembly Amendment Act (Member Changing Parties), SM 2018, c 3. This statute repeals a provision requiring members who quit their party caucus to sit as independents.

68. Erin Crandall identifies two instances, both of which declare their use of section 45 in the legislative preamble: one in Nova Scotia and one in Alberta. See Act Respecting Reasonable Limits for Membership in the House of Assembly, SNS 1986, c 104 ; Constitution of Alberta Amendment Act, 1990, SA 1990, c C-22.2 ; Erin Crandall, "Amendment by Stealth of Provincial Constitutions in Canada" (2022) 45 Man LJ 173. To this I would add an Ontario statute recognizing the previous re-enactment of a section (by a section now repealed) constituting a 1999 amendment to the provincial constitution. See Legislative Assembly Act, RSO 1990, c L10, s 55(2).

69. RSA 2000, c L-9.

70. Charter, supra note 10, s 4(1).

71. Ibid, s 4(2).

72. There may still be some question about its constitutionality, but since a future legislature can theoretically repeal this provision and thus exercise the option under section 4(2) of the Charter, it may not raise serious issues.

73. Representation Act, 1985, SC 1986, c 8; Constitution Act, 1999 (Nunavut), SC 1998, c 15 ; Fair Representation Act, 2011, SC 2011, c 26 ; Preserving Provincial Representation in the House of Commons Act, 2022, SC 2022, c 6.

74. Constitution Amendment Proclamation, 1983, SI/84-102, (1984) C Gaz II, 2984.

75. Constitution Amendment, 1987 (Newfoundland Act), SI/88-11, (1988) C Gaz II, 887 [Amendment, 1987] ; Constitution Amendment, 1997 (Newfoundland Act), SI/97-55, (1997) C Gaz II, Extra No 4 [Amendment, 1997] ; Constitution Amendment, 1998 (Newfoundland Act), SI/98-25, (1998) C Gaz II, Extra No 1 [Amendment, 1998].

76. Amendment, 1987, supra note 75; Amendment, 1997, supra note 75; Amendment, 1998, supra note 75.

77. It is worth noting that the preamble to the resolution passed by the Quebec National Assembly for the Constitutional Amendment, 1997 (Quebec) includes the statement, "Whereas such amendment in no way constitutes recognition by the National Assembly of the Constitution Act, 1982, which was adopted without its consent." See Quebec, National Assembly, Votes and Proceedings, 35-2, No 88 (15 April 1997) at 1000-1001. The irony, of course, was that Quebec was nonetheless compelled to adhere to the amending formula in that constitutional document.

78. Constitution Amendment, 1993 (Prince Edward Island), SI/94-45, (1994) C Gaz II, 2021.

79. Constitution Amendment, 2022 (Saskatchewan Act), SI/2022-25, (2022) C Gaz II, Extra No 3.

80. Charter, supra note 10, s 16.1. See Constitution Amendment, 1993 (New Brunswick), SI/93-54, (1993) C Gaz II, 1588.

81. See MacLean v Attorney General of Nova Scotia (1987), 35 DLR (4th) 306 (NS Sup Ct) [MacLean].

82. See Adler v Ontario, [1996] 3 SCR 609.

83. For comments made by Quebec's Minister of Justice as referred to in the discussion below, see Marco Bélair-Cirino, "Modifier la Constitution aura aussi une portée juridique, plaide Jolin-Barrette," Le Devoir (22 May 2021), online: www.ledevoir.com/politique/quebec/603773/reforme-de-la-loi-101-une-bombe-a-fragmentation-ou-un-petard-mouille [perma.cc/L7DG-KZJJ].

84. Newfoundland Act (UK), 1949, 12 & 13 Geo VI, c 22. See Constitution Amendment, 2001 (Newfoundland and Labrador), SI/2001-117, (2001) C Gaz II, Extra No 6.

85. House of Commons Debates, 37-1, No 105 (30 October 2001) at 6698 (Lawrence O'Brien).

86. See Adam Dodek, "Uncovering the Wall Surrounding the Castle of the Constitution: Judicial Interpretation of Part V of the Constitution Act, 1982" in Macfarlane, Amendment, supra note 8, 42 at 51.

87. "The Canadian Constitutional Amendment Process" (1982) 45 Law & Contemp https://doi.org/10.2307/1191552 ; Probs 249 at 280.

88. Ibid. The inclusion of the word "exclusively" would not likely have any practical significance, given that use of the dissent procedure allows for provincial opt-out under section 38 for matters affecting legislative powers and privileges, and any amendment enacted under the unanimity procedure of section 41 would require the consent of each provincial legislative assembly anyway.

89. [1979] 2 SCR 1016 [Blaikie].

90. 1896 CarswellNS 108 (WL Can) (PC).

91. Blaikie, supra note 89 at 1024.

92. Ibid at 1024-25.

93. Ibid at 1025.

94. Guy Régimbald & Dwight Newman, The Law of the Canadian Constitution (LexisNexis, 2013) at 34, n 83.

95. [1979] 2 SCR 1032 [Forest].

96. Ibid at 1036.

97. See British North America Act 1871 (UK), 34 & 35 Vict, c 28.

98. Forest, supra note 95 at 1038.

99. Ibid at 1039 [emphasis in original].

100. [1987] 2 SCR 2.

101. Ibid at 37-38.

102. Ibid at 39.

103. Ibid at 40.

104. [1993] 1 SCR 319 [New Brunswick Broadcasting].

105. Constitution Act, 1867, supra note 5, s 88.

106. New Brunswick Broadcasting, supra note 104 at 353.

107. Dixon v BC (AG), 1986 CanLII 770 (BC Sup Ct) at para 38.

108. MacLean, supra note 81.

109. New Brunswick Broadcasting, supra note 104 at 374.

110. Ibid.

111. Ibid at 368.

112. Ibid at 396.

113. Ibid.

114. See also Confédération des syndicats nationaux v Canada (Attorney General), 2008 SCC 68 at paras 82-84.

115. [1998] 2 SCR 565 [Eurig Estate].

116. [1978] 2 SCR 1198 at 1257-58.

117. Eurig Estate, supra note 115 at para 34.

118. Ibid at para 35 [emphasis in original].

119. "Living with the Amending Procedures: Prospects for Future Constitutional Reform in Canada" (2007) 37 SCLR (2d) 383 at 391.

120. Maxime St-Hilaire, "Projet de loi no 96: 'passe du coyote' ou piaillement du troglodyte mignon?" (29 May 2021), online (blog): Blogue à qui de droit blogueaquidedroit.ca/2021/05/29/projet-de-loi-no-96-passe-du-coyote-ou-piaillement-du-troglodyte-mignon [perma.cc/PU8J-SK3N].

121. See W Newman, "Constitutional Amendment," supra note 38 at 105.

122. Constitutional Amendments: Making, Breaking, and Changing Constitutions (Oxford University Press, 2019) at 247.

123. For a discussion of changes to the text in relation to section 44 amendments, see Campbell v Canada (Attorney General) (1988), 49 DLR (4th) 321 (BCCA). See also Alani v Canada (Prime Minister), 2015 FC 649 at para 21.

124. For further analysis of how section 44 can only be read this way by virtue of its express relation to the section 52 supremacy clause, see Sarah E Hamill, "The Meta-Constitution: Amendment, Recognition, and the Continuing Puzzle of Supreme Law in Canada" (2016) 16 OUCLJ 28 at 44. https://doi.org/10.1080/14729342.2016.1244451

125. Bélair-Cirino, supra note 83.

126. Ibid.

127. Bill 96, supra note 4, s 159.

128. Russell, supra note 9 at 133-34, 203.

129. Ibid at 134.

130. See Emmett Macfarlane, "The Future of Constitutional Change in Canada: Examining Our Legal, Political, and Jurisprudential Straitjacket" in Richard Albert, Paul Daly & Vanessa MacDonnell, eds, The Canadian Constitution in Transition (University of Toronto Press, 2019) 60 at 72. https://doi.org/10.3138/9781487519117-003

131. Supra note 9 at 140.

132. See David R Cameron & Jacqueline D Krikorian, "Recognizing Quebec in the Constitution of Canada: Using the Bilateral Amendment Process" (2008) 58 UTLJ 389; Dwight Newman, "Understanding the Section 43 Bilateral Amending Formula" in Macfarlane, Amendment, supra note 8, 147 at 154-58. https://doi.org/10.1353/tlj.0.0010

133. Cameron & Krikorian, supra note 132 at 417-18.

134. Ibid at 418.

135. See D Newman, supra note 132 at 155.

136. Ibid.

137. Bill 96, supra note 4, s 159.

138. Constitution Act, 1982, supra note 2, s 41(c).

139. Ibid, s 43(b).

140. See Richez, supra note 8 at 167.

141. Cameron & Krikorian, supra note 132 at 417-19. This assertion is made in the context of proposals that might conflict with the Charter. New Brunswick's bilateral amendment to the Charter make clear such amendments are possible so long as they fit section 43's requirement of only affecting that province. But it is arguably less clear that Quebec could introduce a broad provision that, on its face, conflicts with section 133, given that the latter implicates a Confederation bargain concerning minority rights at both the federal level and within Quebec.

142. Supra note 3.

143. Ibid at para 27.

144. [1998] 2 SCR 217 [Re Secession].

145. See e.g. Kate Glover, "Structure, Substance and Spirit: Lessons in Constitutional Amendment from the Senate Reform Reference" (2014) 67 SCLR (2d) 221 https://doi.org/10.60082/2563-8505.1288 ; Michael Pal, "Constitutional Amendment After the Senate Reference and the Prospects for Electoral Reform" (2016) 76 SCLR (2d) 377 ; https://doi.org/10.60082/2563-8505.1342 ; Christa Scholtz, "The Architectural Metaphor and the Decline of Political Conventions in the Supreme Court of Canada's Senate Reform Reference" (2018) 68 UTLJ 661 https://doi.org/10.3138/utlj.2017-0074 ; Léonid Sirota, "Immuring Dicey's Ghost: The Senate Reform Reference and Constitutional Conventions" (2020) 51 Ottawa L Rev 313 ; Emmett Macfarlane, "The Place of Constitutional Conventions in the Constitutional Architecture, and in the Courts" (2022) 55 Can J Political Science 322 https://doi.org/10.1017/S0008423922000051.

146. Senate Reform, supra note 3 at paras 46-47.

147. Supra note 37.

148. Senate Reform, supra note 3 at para 47, citing Upper House Reference, supra note 37 at 74-75.

149. Senate Reform, supra note 3 at para 48.

150. Re Secession, supra note 144 at para 43.

151. Ibid at para 57.

152. Ibid at para 59.

153. Ibid at para 81.

154. See Bélair-Cirino, supra note 83.

155. A majority of the SCC recently held that statutes cannot be invalidated solely on the basis of unwritten principles. See Toronto (City) v Ontario (Attorney General), 2021 SCC 34 at paras 84-85.

156. See Ian Bailey & Les Perreaux, "Ottawa Supports Quebec Constitutional Challenge on Language Reform, Trudeau Says," The Globe and Mail (19 May 2021), online: www.theglobeandmail.com/politics/article-ottawa-supports-quebec-language-reform-trudeau-says [perma.cc/63DX-PCW3].

157. Ibid.

158. CBC News, "House Passes Motion Recognizing Quebecois as Nation," CBC News (27 November 2006), online: www.cbc.ca/news/canada/house-passes-motion-recognizing-quebecois-as-nation-1.574359 [perma.cc/UVQ7-GPXY].

159. Bill 88, The Saskatchewan First Act, 3rd Sess, 29th Leg, Saskatchewan, 2022, cl 2(5) (second reading 28 November 2022).

160. See Bill 4, An Act to recognize the oath provided in the Act respecting the National Assembly as the sole oath required in order to sit in the Assembly, 1st Sess, 43rd Leg, Quebec, 2022 (assented to 9 December 2022), SQ 2022, c 30.

161. See Laura Marchand, "PQ Denied Entry to Quebec's National Assembly after Refusing to Swear Oath to King," CBC News (1 December 2022), online: www.cbc.ca/news/canada/montreal/pq-denied-entry-1.6670622 [perma.cc/A9VW-GWBF].

162. Bill 4, supra note 160. See also Constitution Act, 1867, supra note 5, s 128. Section 128 reads: Every Member of the Senate or House of Commons of Canada shall before taking his Seat therein take and subscribe before the Governor General or some Person authorized by him, and every Member of a Legislative Council or Legislative Assembly of any Province shall before taking his Seat therein take and subscribe before the Lieutenant Governor of the Province or some Person authorized by him, the Oath of Allegiance contained in the Fifth Schedule to this Act; and every Member of the Senate of Canada and every Member of the Legislative Council of Quebec shall also, before taking his Seat therein, take and subscribe before the Governor General, or some Person authorized by him, the Declaration of Qualification contained in the same Schedule.

163. Courts have recognized that an oath to the monarch is not properly interpreted as an oath to the King in his personal capacity but that "the reference to the [King] is symbolic of our form of government and the unwritten constitutional principle of democracy." McAteer v Canada (Attorney General), 2014 ONCA 578 at para 6. McAteer involved a Charter challenge to the Canadian citizenship oath, but in speaking to the meaning of the oath the court drew directly on the oath as required by section 128 of the Constitution Act, 1867.