Background

The word “referendum” is frequently mentioned by politicians, media, and academics as a potential way of settling contentious public issues. Whether it is to eliminate daylight savings time, create a provincial police force, or initiate negotiations to amend the Constitution of Canada, a referendum typically involves putting a binary “yes” or “no” question to members of the public so that they can directly express their opinion on it.[1] Due to widely held beliefs that referenda represent the unfiltered voice of the electorate, their results carry a special type of political weight, conferring “the people’s legitimacy … [on] decisions which may lead a country in a specific direction for years or decades.”[2]

On October 18th, 2021, Albertans will vote on two referendum questions as part of regularly scheduled municipal elections.[3] One of these questions asks whether the controversial equalization provision of the 1982 Constitution Act (section 36(2)) should be removed from Canada’s Constitution. The question is, what happens if a majority of Albertans vote “yes” in the referendum? Is the equalization provision automatically removed from the Constitution? And, if not, would a “yes” vote impose any legal obligations on Canada’s other governments, or set any further legal processes in motion?

This article provides some background on equalization and presents opposing perspectives on the constitutional implications of the referendum’s results. It explains why the referendum will not remove equalization from the Constitution, and why a “yes” vote likely doesn’t impose any constitutional obligation on the federal government or other provincial governments to negotiate with Alberta on removing section 36(2).

Equalization Payments: Two Opposing Streams of Thought

Before considering the legal impact of the referendum, we need a brief primer on its subject matter: equalization. Equalization payments were first made in 1957, and are now constitutionally guaranteed by section 36(2) of the Constitution Act, 1982, which states:

Parliament and the government of Canada are committed to the principle of making equalization payments to ensure that provincial governments have sufficient revenues to provide reasonably comparable levels of public services at reasonably comparable levels of taxation.[4]

Equalization payments are sums of federal tax revenues that are transferred to provincial governments to ensure that provinces have sufficient funds to ensure delivery of a consistent level of public services across the country.[5] Provinces that generate less revenue, colloquially referred to as “poorer” provinces,[6] receive a financial top up, whereas “richer” ones do not.[7]

While the Constitution guarantees that equalization payments will apply, it does not specify how equalization payments will be carried out. The formula to calculate equalization payments is a policy question that is left to the federal government of the day. A complex, mathematical formula calculates just how much money a province receives in any given year.[8] This formula was updated in 2009 by the Harper government and renewed in 2018 by Justin Trudeau.[9] For a more detailed explanation of how equalization works, see here.

In any given year, some provinces receive equalization payments, and others do not. This has resulted in two diverging perspectives. On the one hand, some stakeholders frame these transfers as unfair.[10] For example, the current Premier of Alberta, Jason Kenney, has said that “equalization is a powerful symbol of unfairness … in confederation”[11] whereby hardworking Albertans’ taxes subsize “have-not provinces.”[12] On the other hand, other stakeholders frame equalization payments as a vital “safety net” to ensure that public services are delivered to a baseline standard for all Canadians.[13] In a public debate, former politician and academic Michael Ignatieff stated that “equalization offers rough equality of opportunity,” guaranteeing assistance when provinces meet the criteria to receive transfer payments.[14]

The Kenney government’s staunch opposition to equalization led Kenney to promise during the 2019 election campaign to hold a referendum on its removal from the Constitution. Accordingly, the government has formulated the following question for the vote on October 18th, 2021:

“Should section 36(2) of the Constitution Act, 1982 — Parliament and the government of Canada’s commitment to the principle of making equalization payments — be removed from the constitution?”[15]

Guidance From the Supreme Court: The Duty to Negotiate from the Quebec Secession Reference

In 1998, the SCC ruled in the Reference re Secession of Quebec that a province could not unilaterally separate from Canada following a provincial referendum in which a majority voted in favour of secession.[24] In the course of this judgment, the Court offered guidance on how federal and provincial governments should respond to the results of provincial referenda on constitutional matters.[25] The Court stated that “the clear repudiation of the existing constitutional order and the clear expression of the desire to pursue secession … would give rise to a reciprocal obligation on all parties to Confederation to negotiate constitutional changes to respond to that desire.”[26] A few lines further on, the Court wrote that “[t]he corollary of a legitimate attempt by one participant in Confederation to seek an amendment to the Constitution is an obligation on all parties to come to the negotiating table.”[27] The Court framed this as an obligatory “duty to negotiate” for the federal and other provincial governments.[28] But as the debate over Alberta’s equalization poll shows, different parties have very different interpretations of what the Court meant.

What Does the Kenney Government Claim the Secession Reference Means?

Kenney directly cited the Secession Reference when speaking publicly about the referendum. In a June 7^th, 2021 press conference, he said that “a positive vote on a proposed constitutional amendment, if it has a clear question and a clear majority of Albertans vote in favour of it, … [will] meet the threshold of the Quebec Secession Reference to compel the Government of Canada to engage in good faith negotiations with Alberta.”[29] Thus, his interpretation of the “duty to negotiate” suggests that when any province holds a referendum with a clear majority result on any constitutional topic, the federal government is legally obliged to commence negotiations.[30]

Kenney has also described the specific process through which this duty to negotiate would arise. Following a positive vote in favor of eliminating equalization, Kenney’s government would ratify the proposed amendment via a vote in the Legislative Assembly.[31] Kenney believes this act of legislative ratification would then legally oblige the federal government and the other provincial governments to commence formal negotiations on the removal of section 36(2) from the Constitution.[32]

Furthermore, Kenney has suggested that the referendum is also an important strategic move on the part of his government. In the June 7th press conference cited above, he said that the referendum is part of a “strategy to elevate Alberta’s fight for fairness in Confederation to the top of the national agenda ... [and] to get Ottawa’s attention.”[33] While Kenney acknowledged that a province cannot unilaterally change the Constitution[34] and that a “yes” vote in the referendum is not “immediately going to fundamentally change equalization”[35] in Canada, he nevertheless calls the referendum a “legal tool to make a strong political point.”[36]

What Do Constitutional Scholars Claim the Secession Reference Means?

In light of Kenney’s reliance on the Secession Reference to justify holding the referendum on section 36(2), academics have chimed in with their opinions on the proper interpretation of the “duty to negotiate.”

Constitutional scholar Emmett McFarlane stated in 2019 on Twitter that “the [duty to negotiate] articulated in the Quebec Secession [R]eference only applies to secession.”[37] University of Alberta law professor Eric Adams similarly argues that Kenney is misrepresenting the Secession Reference, reasoning that the SCC “chose its words deliberately” so that the duty to negotiate applies only “to the most foundational constitutional crisis: the breakup of confederation itself.”[38] Further, Professor Adams points out that it would be a public policy nightmare if negotiations were automatically triggered following any provincial referendum on an any given constitutional topic. He reasons that this would create “an endless quagmire of constitutional dysfunction … [something that] the Supreme Court did not place us on [a path towards].”[39] Adams thus provides a relatively narrow interpretation of the Secession Reference, one which is diametrically opposed to Kenney’s.

While Adams acknowledges that Kenney has the right to initiate constitutional dialogue, he suggests that he can do this without holding a costly provincial referendum.[40] If Kenney asked for the issue to be addressed at a first ministers’ meeting, Adams argues that other provinces and the federal government “have an obligation to acknowledge and address”[41] the matter of equalization, but that they needn’t do more than “listen” to Alberta’s concerns.[42] Adams further suggests that Kenney’s interpretation may be more political than legal, and may be rooted in a politics of “anger, accusation, and blame” rather than a real desire to formally change the Constitution.[43] Whatever Kenney’s motives: for Adams, the referendum will have “nothing … tangible to say about whether or not the constitution [is actually] changed.”[44]

By contrast, University of Calgary professor Rainer Knopff characterizes Kenney’s interpretation as “partly right … [but] also partly wrong.”[45] Like Adams, he argues that the duty to negotiate is only triggered following a referendum on secession.[46] However, Knopff departs from Adams’ arguments and suggests that a different section of the Secession Reference provides a path forward where a referendum may be part of the process for triggering binding legal negotiations.[47]

Professor Knopff’s interpretation begins with paragraph 69 of the Secession Reference, which specifies that the Constitution Act, 1982 “confer[s] a right to initiate constitutional change on each participant in Confederation”[48] and imposes a “corresponding duty on … [Canada’s other governments] to engage in constitutional discussions in order to acknowledge and address democratic expressions of a desire for change”[49] in the initiating province. Knopff suggests that this process does not require a referendum but is rooted in section 46 of the Constitution Act, 1982.[50] Section 46 states that “procedures for [constitutional] amendment … may be initiated either by the Senate or the House of Commons or by the legislative assembly of a province.”[51]

Turning to the mechanics of how this would take place, Knopff speculates that the Alberta legislature could pass a simple resolution on the elimination of equalization and that this would impose a constitutional duty to negotiate on other governments.[52] However, he notes that Alberta’s  Referendum Act requires a constitutional referendum before any such resolution can be enacted.[53] Thus, Knopff suggests that the referendum on equalization is an important step in the legal process of bringing about intergovernmental negotiations on the removal of section 36(2), although it is the legislative resolution that would ultimately “trigger the [constitutional] duty to negotiate,”[54] not the referendum.

The Results of a Single Referendum Probably Don’t Trigger a Legal Duty to Enter Constitutional Negotiations

So, even if a majority of Albertans vote to eliminate equalization, experts generally agree that this would not, by itself, impose a duty on other Canadian governments to enter into constitutional negotiations on equalization. Of course, a referendum is a useful tool for capturing public opinion, and it may be in the best political interests of the Kenney government to hold it, or in the federal government’s political interests to initiate negotiations in the event of a “yes” vote. However, if a vote in favour of eliminating equalization does result in constitutional negotiations, it is more likely that this would stem from political positioning and calculations, not constitutional law. Given the difficulty of getting seven provincial legislatures representing 50% of the population of the provinces to agree on a particular issue, as required by the Constitution’s general amending procedure, it is not likely that the Kenney government will succeed in repealing the equalization provision, even if intergovernmental negotiations did take place

[1] Yves Beigbeder, “Referendum” (June 2011), online: Oxford Public International Law <https://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e1088>.

[2] Ibid.

[3] Drew Anderson, “Premier Jason Kenney Announces Equalization, Daylight Savings Referendums” (15 July 2021), online: CBC News <https://www.cbc.ca/news/canada/calgary/alberta-jason-kenney-referendum-equalization-1.6103528>.

[4] Constitution Act, 1982, s 36(2), being Schedule B to the Canada Act 1982 (UK), 1982, c 11 .

[5] Edison Roy-Cesar, “Canada’s Equalization Formula” (2013) at 1, online (pdf): Library of Parliament  <https://lop.parl.ca/staticfiles/PublicWebsite/Home/ResearchPublications/InBriefs/PDF/2008-20-e.pdf> .

[6] Ben Eisen & Mark Milke, “The Real Have-Nots In Confederation: British Columbia, Alberta, and Ontario” (1 May 2010), online: Policy Options < https://policyoptions.irpp.org/magazines/the-fault-lines-of-federalism/the-real-have-nots-in-confederation-british-columbia-alberta-and-ontario/> [Eisen].

[7] Ibid.

[8] LOP Equalization Formula, supra note 5 at 2-3.

[9] Paul Wells, “The Trudeau Liberals’ Fast One on Equalization: Not So Fast” (22 June 2018), online: Macleans <https://www.macleans.ca/politics/ottawa/the-trudeau-liberals-fast-one-on-equalization-not-so-fast/>.

[10]Senator Paula Simons, “Equalization Town Hall” (28 July 2021) at 00h: 11m: 57s — 00h: 12m: 24s, online (video): YouTube < https://www.youtube.com/watch?v=jPg_QZ2hqz8&t=1s> [Simons Town Hall].

[11] Janet French, “Alberta Equalization Referendum Will Have No Bearing on the Constitution, Experts Say” (7 June 2021), online: CBC News <https://www.cbc.ca/news/canada/edmonton/kenney-update-equalization-referendum-1.6056251>.

[12] Eisen, supra note 6.

[13] Marni Soupcoff, “Equalization is Doing Alberta No Favors — Michael Ignatieff’s Patronizing Arguments Notwithstanding” (19 October 2012), online: National Post <https://nationalpost.com/opinion/marni-soupcoff-equalization-is-doing-alberta-no-favours-michael-ignatieffs-patronizing-arguments-notwithstanding>.

[14] Ibid.

[15] Alberta Legislative Assembly, Hansard Transcripts, 30-2, No 109 (3 June 2021) at 5220.

[16] Constitution Act, 1982, supra note 4, ss 38-49.

[17] French, supra note 11.

[18] Constitution Act, 1982, supra note 4 at ss 38-40, 42.

[19] Constitution Act, 1982, supra, note 4 at ss 38-42.

[20] Richard Albert, “The Conventions of Constitutional Amendment in Canada” (2016) 53 Osgoode Hall L J 399 at 409-410.

[21] CPAC, “Alberta Premier Jason Kenney Discusses Equalization Referendum, Apologizes for Cabinet Patio Dinner” (7 June 2021) at 00h: 15m: 44s — 00h: 16m: 04s, online (video): YouTube <https://www.youtube.com/watch?v=D1rGj0vp-eE> [Kenney Press Conference].

[22] James Keller, “Albertans To Vote on Equalization in Fall Referendum: A Breakdown” (18 July 2021), online: The Globe and Mail <https://www.theglobeandmail.com/canada/alberta/article-a-breakdown-of-albertas-referendum/> [Keller].

[23]Ibid.

[24] Reference re the Secession of Quebec, [1998] 2 SCR 17, 161 DLR 4th 385 .

[25] Ibid at paras 88-92.

[26] Ibid at para 88.

[27] Ibid [emphasis added].

[28] Ibid at para 90.

[29] Kenney Press Conference, supra note 21 at 00h: 15m: 43s — 00h: 16m: 03s.

[30] Eric M Adams, “Jason Kenney’s Equalization Referendum is Built on a Crucial Misrepresentation” (28 June 2021), online: The Globe and Mail <https://www.theglobeandmail.com/opinion/article-jason-kenneys-equalization-referendum-is-built-on-a-crucial/> [Adams].

[31] Kenney Press Conference, supra note 21 at 00h: 16m: 03s — 00h: 16m:16s.

[32] Ibid.

[33] Ibid at 00h: 16m: 33s — 00h: 16m: 44s.

[34] Ibid at 00h 16m: 29s — 00h: 16m: 33s.

[35] Ibid at 00h 16m: 23s — 00h: 16m: 29s.

[36] Ibid at 00h: 17m: 01s — 00h 17m: 10s.

[37] Emmett MacFarlane, “Kenney still operating on presumption that a referendum would force the rest of Canada to negotiate” (22 October 2019 at 15:48), online: Twitter <https://twitter.com/EmmMacfarlane/status/1186761303341371394>.

[38] Adams, supra note 30.

[39] Ibid.

[40] Keller, supra note 22.

[41] Ibid.

[42] Ibid.

[43] Adams, supra note 30.

[44] Simons Town Hall, supra note 10 at 00h: 19m: 54s — 00h: 20m: 02s.

[45] Rainer Knopff, “Refining Alberta’s Equalization Gambit” (2020) at 3, online (pdf): Fraser Institute <https://www.fraserinstitute.org/sites/default/files/refining-albertas-equalization-gambit.pdf> [Knopff].

[46] Ibid at 1.

[47] Ibid at 3.

[48] Secession Reference, supra note 24 at para 69.

[49] Ibid.

[50] Knopff, supra note 45 at 3.

[51] Constitution Act, 1982, supra note 4, s 46.

[52] Knopff, supra note 45 at 4.

[53] Ibid at 6.

[54] Ibid at 1.

On May 13th, 2021, Quebec introduced Bill 96, An Act Respecting French, the Official and Common Language of Quebec.[1] Among other things, Bill 96 attempts to add two clauses to the Constitution Act, 1867. The first clause would declare that “Quebecers form a nation.”[2] The second states that French is Quebec’s official language, and “the common language of the Quebec nation.”[3] To make these changes, Quebec is relying on the amendment procedure set out in section 45 of the Constitution Act, 1982. Section 45 sets out the following unilateral amendment procedure: “Subject to section 41, the legislature of each province may exclusively make laws amending the constitution of the province.”[4] Whether Quebec can validly make these changes using section 45 is uncertain and has experts across Canada divided. This is an unprecedented issue, as no province has ever attempted to make changes to a federal constitutional law — in this case, the Constitution Act, 1867 — using section 45.

This article analyzes whether Quebec can use section 45 to enact Bill 96’s proposed changes. First, it explains what a provincial constitution is. Second, it reviews the section 45 amendment procedure. Finally, it looks at some of the different scholarly perspectives on whether an amendment to a federal law (and a Constitution Act in particular) can constitute an amendment to a provincial constitution.

Provincial Constitutions Exist, But They Are Mostly Unwritten and Uncodified

There is one mention of the phrase “constitution of the province” in Canada’s Constitution, that being in section 45 of the Constitution Act, 1982. However, this term remains undefined. So, what is a provincial constitution?

Provincial constitutions are largely unwritten, but they do also have written components.[5] These written parts are uncodified, meaning that they are not collated in a single constitutional text. This makes it difficult to determine every single written source which is part of a provincial constitution.

The written elements of provincial constitutions include “statutory rules, common law rules, and constitutionally entrenched rules.”[6] They include provincial laws that set out the rules for provincial electoral systems, legislative processes, and governance by the executive branch.[7] They also include parts of the federal Constitution.[8] For example, sections 91 to 95 of the Constitution Act, 1867 set out provincial jurisdiction,[9] sections 96 to 100 create the framework for provincial courts,[10] and Part 5 sets out the Crown’s role in provincial governance.[11]

The unwritten nature of provincial constitutions is modelled after the British system, under which significant and important parts of the constitution are unwritten and instead defined by conventions.[12] Constitutional conventions are unwritten rules that govern matters that are not dealt with explicitly in the written constitution.[13] Conventions are not enforceable by courts as they are not laws, but exist in the “political realm.”[14] The “most fundamental convention of provincial constitutions” is the principle of responsible government.[15] Additional conventions that are part of provincial constitutions in Canada relate to the premier’s and provincial cabinet’s powers.[16]

Section 45: The Amending Procedure for Provincial Constitutions

Part V of the Constitution Act, 1982 sets out different procedures for amending Canada’s Constitution. Each procedure applies to “different subjects” and establishes different requirements for the amendment to be approved.[17] Section 45 sets out a unilateral amendment procedure that permits provincial legislatures to amend the “constitution of the province.”[18] The only requirement, or qualifier, is that this amendment procedure is subject to section 41 of the Constitution Act, 1982. Section 41 requires the unanimous consent of both houses of Parliament and all 10 provincial legislatures for amendments relating to specific subjects, including the “composition of the Supreme Court of Canada,” the amendment procedures in Part V of the Constitution Act, 1982, and “the use of the English or the French Language.”[19] Essentially, the reference to section 41 in section 45 functions as a filter, ensuring that provinces cannot unilaterally pass provincial constitutional amendments on certain subjects of special national importance.

While there is limited case law on section 45 itself, legal scholars suggest that the case law that applied to the now-repealed section 92(1) of the Constitution Act, 1867 also applies to section 45.[20] Section 45 of the newer, 1982 Constitution Act repealed and replaced the original amendment procedure for provincial constitutions (found in section 92(1) of the 1867 Act). Some scholars reason that case law on the old procedure, since it deals with the same subject matter, should be applied to the new one. In a 1987 decision, Ontario (Attorney General) v OPSEU, the Supreme Court of Canada provided commentary on the old section 92(1) procedure. First and foremost, an amendment of a provincial constitution is achieved, the Court said, through the enactment of “an ordinary law or statute of the provincial legislature.”[21] An enactment is considered an amendment to a provincial constitution:

when it bears on the operation of an organ of the government of the province, provided it is not otherwise entrenched as being indivisibly related to the implementation of the federal principle or to a fundamental term or condition of the union, and provided of course it is not explicitly or implicitly excepted from the amending power bestowed upon the province by s. 92(1), such as the office of Lieutenant‑Governor and, presumably and a fortiori, the office of the Queen who is represented by the Lieutenant‑Governor.[22]

Looking at section 45, there is no explicit requirement for any special level of majority support for the proposed amendment to pass. However, it does, at a minimum, require the passing of a law in a provincial legislature, thereby implying that a majority of legislators must necessarily consent to the amendment.[23]

Can Quebec Use Section 45 to Amend the Constitution Act, 1867?

Experts are divided on whether the proposed addition of two clauses to the Constitution Act, 1867 can validly be done using the section 45 amendment procedure. Unfortunately, previous uses of section 45 provide little guidance, as there have only been a few occasions when a provincial law has explicitly referenced it.[24] For example, Alberta expressly relied on section 45 when developing a land-based governance model for Métis settlements within the province in 1990.[25]  However, the crucial difference between this use of section 45, and the use now proposed by Quebec, is that Alberta did not modify or add clauses to a piece of federal legislation. Moreover, Quebec’s proposed amendments are not just to any federal law, but to the Constitution Act, 1867, which is identified in the Constitution Act, 1982 as part of the Constitution of Canada.[26] As such, Quebec’s attempt to use section 45 is strikingly different from previous uses.

Where Does the Federal Government Stand?

When asked if Quebec could add clauses to the Constitution Act, 1867, Prime Minister Justin Trudeau responded that permission from the other provinces or the federal government is not needed.[27] In his comments, Trudeau said “Quebec, effectively, has the right to modify a part of the Constitution.”[28] Shortly after Trudeau’s comments on the matter, all major political party leaders at the federal level agreed that Quebec is able to make these proposed changes via section 45.

While federal leaders’ reasons for taking this position are unclear, one factor may be that there is nothing that controversial about the substance of the proposed changes. In fact, in 2006, Parliament under the Harper government already passed a House of Commons motion recognizing Quebec’s status as a nation.[29] However, it is important to note that this House of Commons motion is symbolic and non-binding. As such, this motion is very different from a constitutional amendment, because constitutional law is not only binding, but is “supreme” as well, ie the highest form of law in the Canadian legal system.

On the other hand, the support from Trudeau and other political party leaders, despite the legal and constitutional questions surrounding Bill 96’s proposed changes, may be a product of political calculation rather than legal or otherwise substantive analysis.[30] On this point, Ian Peach suggests that federal party leaders are supporting these amendments “in the hope that agreeing with the Quebec government will allow them to win more House of Commons seats in Quebec in the upcoming federal election.”[31]

Whatever the motivations of federal leaders, their comments and opinions do not bring us any closer to answering the real question surrounding the Bill 96 changes: the question of how these two proposed clauses can be legally added into the Constitution Act, 1867. On that matter, commentary from legal experts can help clarify whether the Quebec government is correct to assert that section 45 can be used.

What Do the Experts Say?

Among the first to comment on the matter, Emmett Macfarlane stated that Quebec cannot unilaterally insert the proposed clauses into Canada’s Constitution using section 45.[32] Macfarlane commented: “[The provisions] run afoul of the Constitution’s amending formula and are thus ultra vires (beyond the authority of) the Quebec National Assembly.”[33] He reasoned that recognizing Quebec as a nation in the Constitution Act, 1867 extends beyond the boundaries of a provincial constitutional change for the purpose of the amending procedure in section 45.[34] Further, Macfarlane notes that the provisions “would confer new, unprecedented recognition of a social fact by the Canadian Constitution.”[35] This amendment does not go towards “the operation of an organ of the government of the province,”[36] in the words of the Supreme Court; instead it “imposes recognition of a contested fact on the rest of the federation.”[37]

Stéphanie Chouinard, on the other hand, partially agrees with the Quebec government, but adds a layer of nuance. Chouinard commented that “the first part of this proposal could most likely be adopted unilaterally by Quebec, but the second may require federal approval.”[38] The requirement of federal approval is laid out under section 43 of the 1982 Constitution Act, and is applicable to amendments that “relate … to the use of the English or the French language in a province.”

In contrast with both Macfarlane and Chouinard, Benoît Pelletier, a former minister for intergovernmental affairs in Quebec, fully supports the Quebec government’s claim that it can use section 45 for both proposed amendments.[39] In short, Pelletier believes that the proposed amendments only modify the constitution of Quebec and do not touch upon or alter federal-provincial relations, another province’s affairs, or the structure of Canadian federalism.[40] He accordingly reasons that both provisions are fully within the scope of section 45.

Where Do Canadians Stand?

Within Canada, the general public is also divided. The National Post reports that “a large majority of Quebecers support the right of provinces to unilaterally amend parts of the Constitution, whereas a similar majority of Canadians outside Quebec reject the proposal.”[41] The results of a recent poll showed that 62% of Quebecers supported the use of section 45 to amend parts of the Constitution that applied to the province specifically, while 64% of Canadians living outside of Quebec disagreed.[42] The last time Canada has seen a division such as this was arguably in the years leading up to and surrounding the 1995 referendum on Quebec sovereignty, which was partly motivated by Canada’s failure to constitutionalize Quebec’s distinct status — as Bill 96 now tries to do — via the Meech Lake and Charlottetown Accords.[43]

Conclusion: Where Are We Now?

On May 13th, 2021, Quebec tabled Bill 96, An Act Respecting French, the Official and Common Language of Quebec. Bill 96 proposes to unilaterally insert two clauses into the Constitution Act, 1867. The first declares that “Quebecers form a nation.” The second states that French is the official language in Quebec, and the “common language of the Quebec nation.” In response to these changes, the federal government and all major federal political party leaders have effectively given Quebec the green light to move forward with this amendment using the amending procedure found in section 45 of the Constitution Act, 1982. Section 45 permits provinces to unilaterally amend their provincial constitutions. Despite the supportive responses from Parliament, legal experts disagree sharply on whether Quebec can validly use section 45 to make these proposed amendments. As things stand, this uncertainty about the law will remain unless the Supreme Court of Canada has an opportunity to authoritatively rule on the matter through a reference question.

Further Reading:

• Erin Crandall – “What is a provincial constitution and how do we amend it?”
• Emmett Macfarlane – “Quebec’s attempt to unilaterally amend the Canadian Constitution won’t fly”
• Stéphanie Chouinard: Legault’s Language Bill – “A Third Way Between Sovereigntists and Federalists”
• Marco Bélair-Cirino – “Le Québec francophone dans la Constitution Canadienne, sans demander de permission”

[1] Bill 96, An Act respecting French, the official and common language of Québec, 1st Sess, 42nd Leg, Québec, 2021 (first reading 13 May 2021), online: <http://www.assnat.qc.ca/en/travaux-parlementaires/projets-loi/projet-loi-96-42-1.html> .

[2] Ibid, s 159.

[3] Ibid, s 159.

[4] Constitution Act, 1982, s 45, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 .

[5] Ontario (Attorney General) v OPSEU, [1987] 2 SCR 2, 1987 CanLII 71 at para 85 .

[6] Emmanuelle Richez, “The Possibilities and Limits of Provincial Constitution-Making Power: The Case of Quebec” in Emmett Macfarlane, ed, Constitutional Amendment in Canada (Toronto: University of Toronto Press, 2016) 164 at 164 [Richez].

[7] Ibid at 165.

[8] Ibid.

[9] Ibid.

[10] Ibid.

[11] Ibid.

[12] Ibid at 164.

[13] Stephen Azzi, “Constitution of Canada” (last modified 24 April 2020), online: The Canadian Encyclopedia <www.thecanadianencyclopedia.ca/en/article/constitution>.

[14] Ibid.

[15] Richez, supra note 6 at 164-65.

[16] Ibid.

[17] Ibid.

[18] Constitution Act, 1982, supra note 4, s 45.

[19] Ibid, s 41.

[20] Richez, supra note 6 at 166.

[21] OPSEU, supra note 5 at para 82.

[22] Ibid at para 90.

[23] Richez, supra note 6 at 170.

[24] Erin Crandall, “What is a Provincial Constitution and How Do We Amend It?” (May 28 2021), online: Policy Options <https://policyoptions.irpp.org/magazines/may-2021/what-is-a-provincial-constitution-and-how-do-we-amend-it/>.

[25] Ibid. See also Constitution of Alberta Amendment Act, 1990, RSA 2000, c C-24, Preamble.

[26] Ian Peach, “Quebec Bill 96 – Time for a Primer on Amending the Constitution” (2021) 30:3 Const Forum 1 at 3 [Peach].

[27] Jonathan Montpetit, “Quebec’s proposed changes to Constitution seem small, but they could prompt historic makeover” (19 May 2021), online: CBC News <www.cbc.ca/news/canada/montreal/quebec-canada-constitution-changes-language-bill-1.6031828>.

[28] Ibid.

[29] “House passes motion recognizing Quebecois as nation” (27 November 2006), online: CBC News <www.cbc.ca/news/canada/house-passes-motion-recognizing-quebecois-as-nation-1.574359>.

[30] Peach, supra note 26 at 6-7.

[31] Ibid at 7.

[32] Emmett Macfarlane, “Quebec’s attempt to unilaterally amend the Canadian Constitution won’t fly” (14 May 2021), online: Policy Options <https://policyoptions.irpp.org/magazines/may-2021/quebecs-attempt-to-unilaterally-amend-the-canadian-constitution-wont-fly/> [Macfarlane].

[33] Ibid.

[34] Ibid.

[35] Ibid.

[36] OPSEU, supra note 5 at para 90.

[37] Macfarlane, supra note 32.

[38] Stéphanie Chouinard, “Legault’s Language Bill – A Third Way Between Sovereigntists and Federalists” (14 May 2021), online: Policy Magazine <https://www.policymagazine.ca/legaults-language-bill-a-third-way-between-sovereignists-and-federalists/>.

[39] Marco Bélair-Cirino, “Le Québec francophone dans la Constitution canadienne, sans demander de permission” (13 May 2021), online: Le Devoir <www.ledevoir.com/politique/quebec/600956/le-quebec-francophone-dans-la-constitution> [translated by author].

[40] Ibid.

[41] Christopher Nardi, “Quebecers and the rest of Canada deeply divided on Quebec’s proposal to modify Constitution: poll” (29 May 2021), online: National Post <https://nationalpost.com/news/politics/quebecers-and-the-rest-of-canada-deeply-divided-on-quebecs-proposal-to-modify-constitution-poll>.

[42] Ibid.

[43] See “Looking back at the 1995 Quebec referendum” (30 October 2020), online: Global News <https://globalnews.ca/video/7433833/looking-back-at-the-1995-quebec-referendum>.

On May 13th, 2021, the Quebec government introduced Bill 96, “An Act respecting French, the official and common language of Québec” in the Quebec National Assembly.[1] Bill 96 seeks to update the Charter of the French Language (also known as “Bill 101”)[2] and “affirm that the only official language of Québec is French [and] that French is the common language of the Québec nation.”[3] Bill 96 is receiving significant attention amongst constitutional scholars for article 159, which seeks to amend section 90 of the Constitution Act, 1867 — one of the key texts of the Canadian Constitution — by inserting the following provisions:[4]

FUNDAMENTAL CHARACTERISTICS OF QUEBEC

90Q.1.  Quebecers form a nation.

90Q.2.  French shall be the only official language of Quebec. It is also the common language of the Quebec nation.[5]

Constitutional scholars are divided on whether Quebec’s National Assembly may unilaterally amend the Constitution Act, 1867 in this way. Part V of the Constitution Act, 1982 sets out five rules that governments must follow to pass constitutional amendments, where the applicable rule depends on the subject matter of the proposed amendment.[6] This article refers to these rules collectively as the Constitution’s “amending formula” and to each separate rule as an “amendment procedure.”

This article highlights some of the leading thoughts on which amendment procedure should apply to the Bill 96 amendments and why. In particular, the article focuses on the following three amendment procedures:[7]

• Section 45: “Amendments by provincial legislatures” to the constitution of the province;[8]
• Section 43: “[A]mendment[s] to the Constitution of Canada in relation to any provision that applies to one or more, but not all, provinces,” including amendments concerning “the use of the English or the French language within a province,”[9] and;
• Section 38: Amendments under the “[g]eneral procedure for amending [the] Constitution of Canada.”[10]

Section 45: Amendments by Provincial Legislatures

Subject to section 41, the legislature of each province may exclusively make laws amending the constitution of the province.[11]

Section 45 allows for the amendment of a provincial constitution by that province’s legislature, acting alone. This is the least onerous amendment procedure under the 1982 Constitution Act’s amending formula.[12] The Quebec government intends to enact the proposed constitutional amendments in Bill 96 unilaterally, using the section 45 amendment procedure. Its leading argument for invoking section 45 is that the proposed provisions amend Quebec’s provincial constitution, not the Constitution of Canada. However, there has been disagreement on three issues that are essential to this claim: (1) how to define the constitution of a province; (2) whether the proposed amendments alter the Constitution of Canada or just the constitution of the province of Quebec; and (3) whether the proposed provisions are purely symbolic, or “engage … the interests of the [other] provinces by changing the fundamental nature”[13] of the Canadian federation and, hence, the Constitution of Canada.[14]

The following are some of the arguments that have been made in favour of the Quebec government’s claim that it can unilaterally amend the Constitution Act, 1867 using section 45:

• Minister Simon Jolin-Barrette in Le Devoir: Quebec may amend section 90 because it falls under Part V of the Constitution Act, 1867 on “Provincial Constitutions” and therefore “belongs” to Quebec.[15] In other words, section 90 of the Constitution Act, 1867 is part of the constitution of the province of Quebec.
• Professor Patrick Taillon in Le Devoir: Quebec may alter the text of the Constitution that applies to Quebec, and so may define itself as “a member state of the federation” rather than one of the “provinces” of the “dominion.”[16]
• Benoît Pelletier in Le Devoir: Neither provision “touch[es]” either the federal aspect, federal-provincial relations, any other province, or the structure of Canadian federalism.[17]
• Allan Rock and Glenn O’Farrell in The Globe and Mail: Applying section 45 is beneficial from a policy perspective because it would show that the Constitution can adapt to the reality on the ground and that Canadian governments “can accommodate the aspirations of … [their] partners.”[18]

On the other hand, these are some of the arguments against Quebec’s claim that it can use section 45 to enact the proposed changes:

• Ian Peach in the Constitutional Forum: According to the Constitution’s written text, any amendment to the Constitution Act, 1867 is an amendment to the “Constitution of Canada” because section 52(2) of the Constitution Act, 1982 provides that the “Constitution of Canada” includes the Constitution Act, 1867.[19]
• Professor Eric Adams in CBC News and on Twitter: Provincial constitutions are not distinct entities, but are rather “like nesting dolls” that form “part of the larger structure of the Constitution of Canada.”[20] The heading of Part V of the Constitution Act, 1867 (“Provincial Constitutions”) does not mean that what follows is the constitution of the provinces, but rather that it contains some elements of those constitutions.[21]
• Julius Grey in The Lawyer’s Daily: The provisions amount to Quebec seeking “sovereignty by the back door.”[22] If that “is the goal of the Quebec government, it should state it frankly and openly.”[23]

Section 43: Amendment of Provisions Relating to Some but not All Provinces

An amendment to the Constitution of Canada in relation to any provision that applies to one or more, but not all, provinces, including

…

(b) any amendment to any provision that relates to the use of the English or the French language within a province,

may be made … 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.[24]

Constitutional scholars and lawyers disagree on how to interpret this provision. Some argue that section 43 is engaged when the Constitution of Canada itself is amended — not a provincial constitution — and that amendment applies to one or more, but not all, provinces.[25] Others suggest that section 43 is engaged when an amendment to either the Constitution of Canada or a provincial constitution affects or amends a “special arrangement” in the Constitution of Canada — including the use of the English or French language within a province — regardless of which vehicle is used to make that amendment.[26]

In theory, section 43 makes it somewhat more efficient to amend the Constitution of Canada when the amendment only affects one or some but not all of the provinces because it does not require the consent of provinces for whom the amendment does not apply.[27] At the same time, section 43 ensures that all Canadians are represented — via the involvement of federal institutions — in the process of amending the Constitution of Canada, even if not all provinces take part in the process.[28] In this regard, section 43 allows members of parliament to examine the amendment on behalf of all Canadians to better understand its broader implications, including its effect on the rest of the Constitution.[29] Pan-Canadian representation is important because the Constitution belongs to all Canadian citizens, and it is a fundamental constitutional principle of democracy that all Canadians are represented in the process of amending it.[30]

The following source argues that both of Quebec’s proposed additions to the Constitution Act, 1867 — 90Q.1 (the nationhood provision) and 90Q.2 (the language provision) — amend the Constitution of Canada, but that the amendments only affect the province of Quebec, and therefore only require the consent of the federal Parliament and the Quebec National Assembly:

• Ian Peach in the Constitutional Forum: Peach cautions that both the provisions themselves and the precedent of Quebec unilaterally amending the Constitution risks altering how the courts interpret the Constitution of Canada.[31] This may or may not affect which amendment procedure applies.

The following sources consider whether the language provision (90Q.2) affects the Constitution of Canada, and therefore requires, at a minimum, authorization by the federal Parliament as well as the Quebec National Assembly:

• Professor Eroll Mendez on CBC Power and Politics: The French language provision and the rest of Bill 96 could remove the rights of English-speakers and change the use of the English and French languages within Quebec, which engages section 43(b).[32]
• However, Patricia Hughes in Slaw suggests that, since the French language provision “does not directly amend … any of the … explicit language provisions in the [C]onstitution,” section 43 might not apply.[33]

Section 38 (1): General Procedure for Amending the Constitution of Canada

An amendment to the Constitution of Canada may be made … 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.[34]

Professor Richard Albert assessed this amendment procedure as the fourth-most difficult to use in the world.[35] For Albert, this is not necessarily a good thing. In his view, a constitution should be sufficiently entrenched to preserve the fundamental values upon which a society is based. However, it should not be so difficult to amend that it “privileges the status quo and reinforces the values and vision of those whose voice prevailed in creating the constitution.”[36]

The section 38 amendment procedure is also known as the “7/50 formula” or the “general amending procedure.” The Supreme Court of Canada referred to this procedure as “represent[ing] the balance deemed appropriate by the [constitutional] framers … for most constitutional amendments,” while the other amending procedures are “exceptions to the general rule.”[37] This suggests that section 38 is a big bucket that captures most constitutional amendments and should be interpreted broadly, while the remaining procedures cover the exceptions and should therefore be interpreted narrowly.

A number of scholars have argued that, insofar as no other amendment procedure is obviously applicable, one or both of the Bill 96 changes should be placed in the “big bucket” of the general amending procedure under section 38:

• Professor Emmett Macfarlane in Policy Options: Quebec’s proposed amendments concern matters that have been subject to intense national debate throughout Canada’s constitutional history.[38] In particular, unilaterally amending the Constitution to recognize Quebec nationhood would “impose … recognition of a contested fact on the rest of the federation,”[39] and should therefore require the use of section 38.
• Patricia Hughes in Slaw and Professor Eroll Mendez on CBC Power and Politics: The nationhood provision could distort the equal partnership amongst provinces and the federal government.[40] It could be used to argue that Quebec has special rights over other provinces — “the devil is in the details.”[41] If the provision “effectively redesigns the basic jurisdictional structure of the confederation,” section 38 would be required.[42]
• Patricia Hughes in Slaw: The French language provision could be contrary to section 23 of the Charter, which protects minority language educational rights,[43] or section 133 of the Constitution Act, 1867, which provides that “[e]ither the English or French Language may be used by any Person in the Debates … of the Legislature of Quebec.”[44] Because the French language provision affects explicit constitutional protections, section 38 is the appropriate pathway for adding it to the Constitution.[45]

 Conclusion

It is not clear which amending procedure must be used for Quebec to insert the nationhood and French language provisions into the Constitution Act, 1867. Much of the debate is about defining key terms such as “constitution of the province,” understanding the purpose of the proposed provisions in the context of Bill 96 and other provincial legislation, and examining the effects of elevating these provisions to constitutional status. The Quebec government is preparing to conduct public hearings on Bill 96, to begin September 21st, 2021,[46] so some of the answers could be forthcoming. In the meantime, the recent commentary from constitutional experts provides insight into the key considerations that ought to inform how the proposed amendments are dealt with.

Further reading from the Centre for Constitutional Studies:

• Amending Formula: Overview of the purpose and structure of the amending formula.
• Reference re Senate Reform (2014): The Supreme Court Clarifies the Senate Reform Process: The Supreme Court of Canada’s interpretation of the amending formula, which arose from the Harper government’s attempt to make changes to the Senate.
• Fulton-Favreau: Failed attempt to negotiate a new amending formula in the 1960s.
• Meech Lake Accord: Failed (i.e. unratified) constitutional agreement in 1987 following Quebec’s refusal to agree to the Canada Act, 1982 (and by extension the Constitution Act, 1982). Quebec’s status as a “distinct society” within Canada and language rights were central issues.
• Beaudoin-Edwards Committee: Committee established in 1991 to examine the amending formula and recommend alternatives.
• Beaudoin-Dobbie Committee: Committee established in 1991 to consult with Canadians on possible changes to the Constitution of Canada.
• Plan A and Plan B: Federal initiatives to address Quebec’s status as a “distinct society” and language rights following the 1995 Quebec sovereignty referendum.

[1] Bill 96, An Act respecting French, the official and common language of Québec, 1st Sess, 42nd Leg, 2021 (first reading 13 May 2021) [Bill 96].

[2] Charter of the French language, CQLR c C-11 (adopted in 1977, last updated 18 March 2021).

[3] Bill 96, supra note 1 at Explanatory Notes.

[4] Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, s 91, reprinted in RSC 1985, Appendix II, No 5.

[5] Bill 96, supra note 1 art 159 .

[6] Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 ss 38, 41, and 43-45 . See also Richard Albert, “The Expressive Function of Constitutional Amendment Rules” (2013) 59:2 McGill LJ 225 at 247-250 [Albert, “Amendment Rules”].

[7] Section 41 will not be addressed because there is general consensus that neither provision falls within the scope of the listed matters that require unanimous provincial and federal consent (see e.g. Emmett Macfarlane, “Quebec’s attempt to unilaterally amend the Canadian Constitution won’t fly” (14 May 2021), online: Policy Options <https://policyoptions.irpp.org/magazines/may-2021/quebecs-attempt-to-unilaterally-amend-the-canadian-constitution-wont-fly/> [“Mcfarlane”]). Section 44 will not be addressed because this procedure applies only to amendments made by Parliament “in relation to the executive government of Canada or the Senate and House of Commons” (Constitution Act, 1982, supra note 6, s 44).

[8] Constitution Act, 1982, supra note 6, s 45.

[9] Ibid, s 43.

[10] Ibid, s 38.

[11] Ibid, s 45 (emphasis added). “Amendment by unanimous consent” provides an exhaustive list of matters that require the consent of Parliament and all legislatures to amend (Constitution Act, 1982, supra note 6 at s 41).

[12] See Albert, “Amendment Rules,” supra note 6 at 249.

[13] Reference re Senate Reform, 2014 SCC 32 (CanLII) at paras 77-78 .

[14] See e.g. Patricia Hughes, “How Far Can We Go Before the Constitutional Bargain Is Undermined?” (1 June 2021), online (blog): Slaw <http://www.slaw.ca/2021/06/01/how-far-can-we-go-before-the-constitutional-bargain-is-undermined/> [“Hughes”]. Hughes asks: “Which part of the constitutional amending procedure applies? What do those provisions mean? What are the ramifications for the spirit or architecture of the constitutional bargain? Do sections 90Q.1 and/or 90Q.2 amend the Constitution of Canada? Or … do they amend only the Constitution of Quebec?”

[15] Marco Bélair-Cirino, “Le Québec francophone dans la Constitution canadienne, sans demander de permission” (13 May 2021), online: Le Devoir <https://www.ledevoir.com/politique/quebec/600956/le-quebec-francophone-dans-la-constitution> (translated by author) [“Bélair-Cirino”]. See also Maxime St-Hilaire, “Quebec’s Bill 96 is an Unconstitutional Attempt to Amend the Constitution of Canada” (8 June 2021), online: Advocates for the Rule of Law <http://www.ruleoflaw.ca/quebecs-bill-96-is-an-unconstitutional-attempt-to-amend-the-constitution-of-canada/>.

[16] Patrick Taillon, “La langue de la loi” (18 January 2021), online: Le Devoir <https://www.ledevoir.com/opinion/idees/593465/langue-francaise-la-langue-de-la-loi> (translated by author). See also Taillon quoted in Bélair-Cirino, supra note 15 and St-Hilaire, supra note 15.

[17] Bélair-Cirino, supra note 15 (echoing the language in the Constitution Act, 1982, supra note 4, s 43 and the Supreme Court of Canada in Reference re Senate Reform, supra note 13 at paras 25-27).

[18] Allan Rock and Glenn O’Farrell, “Quebec’s Bill 96 has its merits, notwithstanding one big flaw” (9 June 2021), online: The Globe and Mail <https://www.theglobeandmail.com/opinion/article-quebecs-bill-96-has-its-merits-notwithstanding-one-big-flaw/>. See also Richard Albert, “Constitutional Amendment by Stealth” (2015) 60:4 McGill LJ 673 [Albert, “Amendment by Stealth”].

[19] Ian Peach, “Quebec Bill 96 — Time For a Primer on Amending the Constitution” (2021) 30:3 Constitutional Forum / Forum constitutionnel 1 at 3 [“Peach”].

[20] Jonathan Montpetit, “Quebec's proposed changes to Constitution seem small, but they could prompt historic makeover” (19 May 2021), online: CBC News <https://www.cbc.ca/news/canada/montreal/quebec-canada-constitution-changes-language-bill-1.6031828> (quoting Professor Adams).

[21] Eric Adams, “I think the confusion stems from the heading of Part V of the Constitution Act, 1867: ‘Provincial Constitutions’. The provisions that follow contain some elements of provincial constitutions, but this section is not, itself, the Constitutions of the various provinces” (28 May 2021 at 11:29), online: Twitter <https://twitter.com/ericadams99/status/1398330636276932610?s=10>.

[22] Julius Grey, “Bill 96: The perils of ‘pensée unique’” (Lexus Nexus: 26 May 2021), online: The Lawyer’s Daily <https://www.thelawyersdaily.ca/articles/26971> [“Grey”]. See also Albert, “Amendment by Stealth,” supra note 18 and Peach, supra note 19 at 5.

[23] Grey, supra note 22.

[24] Constitution Act, 1867, supra note 4 (emphasis added).

[25] See e.g. Peach, supra note 19 at 3-4.

[26] See e.g. CBC Power and Politics, “Could Quebec unilaterally change parts of the Constitution?” (19 May 2021), online: YouTube <https://www.youtube.com/watch?v=ZTfYJ-nlY5A> (Eroll Mendez) [“CBC Power and Politics”]; and Hughes, supra note 14.

[27] See Peach, supra note 19 at 5.

[28] Constitution Act, 1982, supra note 6 at s 43 (amendments that include “(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” requires parliamentary consent and the consent of “each province to which the amendment applies”). See also Peach, supra note 19 at 5.

[29] See Peach, supra note 19 at 5.

[30] Ibid at 5-6.

[31] Ibid.

[32] CBC Power and Politics, supra note 26. See also Joel Goldenberg “Trudeau’s Bill C-32 declares French as Quebec’s official language” (16 June 2021), online: The Suburban <https://www.thesuburban.com/news/city_news/trudeaus-bill-c-32-declares-french-as-quebecs-official-language/article_73b1d6bf-bf0d-53c3-b2b4-6b2c08420590.html>.

[33] Hughes, supra note 14.

[34] Constitution Act, 1982, supra note 6, s 38 (emphasis added).

[35] See Albert, “The Difficulty of Constitutional Amendment in Canada” (2015) 53:1 Alta LRev 85 at 93 (citing Donald S Lutz, Principles of Constitutional Design (New York: Cambridge University Press, 2006 at 169).

[36] Ibid at 106.

[37] Reference re Senate Reform, supra note 13 at para 36.

[38] Macfarlane, supra note 7.

[39] Ibid (echoing the Supreme Court of Canada in Reference Re Senate Reform, supra note 13 at paras 77-78).

[40] Hughes, supra note 14.

[41] CBC Power and Politics, supra note 26. See also Deepak Awasti, “Trudeau wrong in interpretation of Bill 96 Constitutional amendment powers”, (26 May 2021), online: The Suburban <https://www.thesuburban.com/opinion/letters_to_editor/trudeau-wrong-in-interpretation-of-bill-96-constitutional-amendment-powers/article_0d6fec82-c5c5-5f64-8b92-ef2da8a6654b.html>.

[42] Hughes, supra note 14 (Hughes notes that, alternatively, Quebec could view the nationhood provision as a “pact between two peoples” that does not affect the other provinces, and therefore only engages section 43).

[43] Canadian Charter of Rights and Freedoms, s 7, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.

[44] Constitution Act, 1867, supra note 4 at s 133 (Hughes, supra note 14 notes that a violation of section 133 could be interpreted narrowly to affect only Parliament and Quebec, but not the rest of Canada).

[45] Hughes, supra note 14 (Hughes also uses this argument to suggest that unanimous consent could be required under section 41 of the Constitution Act, 1982, although this is unlikely. If the courts find that the French language provision violates the Constitution so broadly as to affect all provinces of Canada, unanimous consent may be required).

[46] “Public hearings for Quebec’s French language law bill to begin Sept. 21” (29 June 2021), online: Montreal Gazette <https://montrealgazette.com/news/quebec/public-hearings-for-quebecs-french-language-law-bill-to-begin-sept-21>.

The Supreme Court of Canada Weighs In: The GNDA is Constitutional  

On July 10th, 2020, the Supreme Court of Canada (SCC) released its much-anticipated Reference re Genetic Non-Discrimination Act (“GNDA Reference”) decision. In a remarkably close decision, a five to four majority of the Court found that the Genetic Non-Discrimination Act (GNDA) is constitutional.[1] This article will examine how the Court reached this conclusion by framing the GNDA as a valid exercise of the federal Parliament’s criminal law power.

Background: What Does the GNDA Do?

In 2017, Parliament addressed concerns about the use of mandatory genetic tests and the potential for non-consensual use of genetic test results by passing the GNDA. Section 3 of the GNDA makes it illegal “to require an individual to undergo a genetic test as a condition of” the following:  entering into or continuing contracts or agreements, the provision of goods or services, and offering or continuing to offer specific terms and conditions in a contact or agreement.[2] Section 5 requires an individual’s consent if any genetic information is to be used, collected, or disclosed.[3] And section 7 outlines the penalties for violations, which range from fines to imprisonment for up to five years.[4] The GNDA also updated the Canadian Human Rights Act and the Canada Labour Code by explicitly outlawing discrimination based on genetic conditions.[5]

The GNDA’s Path Through Parliament: Swirling Questions About its Constitutionality

The GNDA originated in the Senate as a private members bill.[6] It was proposed by Senator James Cowan, who wished to use the federal government’s jurisdiction over criminal matters[7] to ensure that Canadians can freely access “the extraordinary advances taking place in medical science”[8] by undergoing genetic tests. Throughout the parliamentary discussions, many lawmakers agreed with the Bill, typically on the grounds that it would prevent insurance companies denying coverage[9] or increasing premiums based on pre-disposed genetic conditions.[10] Lawmakers also asserted that the Bill was necessary to update Canada’s laws to address nuanced forms of discrimination.[11]

However, as the GNDA made its way through Parliament, concerns about its constitutionality arose. The main flashpoint centered around the division of powers, a hallmark of Canadian federalism.[12] Section 91 of the Constitution Act, 1867 grants the federal government jurisdiction over certain matters, while Section 92 outlines the powers of provincial governments.[13] Neither level of government can make laws that fall under the other’s exclusive jurisdiction. With the GNDA, Parliament purported to exercise its jurisdiction over criminal law under section 91(27) by outlawing genetic discrimination and establishing stringent punishments for violations.

In contrast, the Government of Quebec argued that the GNDA was a veiled attempt to regulate the insurance industry and private commercial contracts, and that it thereby intruded on the provinces’ jurisdiction over property and civil rights under section 92(13).[14] Insurance companies also raised concerns about the legislation, claiming that the federal government was unconstitutionally regulating their industry and making it more difficult for them to assess risk.[15] The Cabinet of Canada, on the advice of then-Attorney General Jody Wilson-Raybould, agreed with the Quebec government and opposed the GNDA in Parliament.[16] Nevertheless, a majority of parliamentarians voted to pass the GNDA and it was granted royal assent in May 2017.[17]

Immediately, Quebec’s provincial government asked its Court of Appeal to determine whether sections 1 to 7 of the GNDA were a valid exercise of the federal Parliament’s power to make criminal laws. The Quebec Court of Appeal ruled that sections 3, 5, and 7 of the GNDA were not criminal laws and were unconstitutional because they therefore exceeded federal jurisdiction.[18] Upon the Quebec Court’s ruling, the Canadian Coalition of Genetic Fairness, an intervener[19] which heavily advocated for the GNDA, filed an appeal to the Supreme Court of Canada.[20] The SCC was tasked with determining whether the GNDA is a valid criminal law or a “colourable law” which presents itself as a criminal law but in fact attempts to covertly regulate matters within provincial jurisdiction (e.g. the insurance industry).

The Supreme Court’s Analysis: A Two Step Process

Writing for the majority of the Supreme Court, Justice Karakatsanis outlined the division of powers test to determine whether the impugned provisions of the GNDA fell within federal jurisdiction. First, the Court “characterized” the GNDA by determining its “pith and substance” (or essential character). Then, based on that characterization, the Court asked whether the federal government has the power to enact the GNDA under section 91(27) of the Constitution Act, 1867 (the criminal law power).[21]

Step 1- Pith and Substance: Determining the Essential Character of the GNDA

The first step the SCC took in the GNDA Reference was a “pith and substance” analysis. This analysis determines the “essential character” of the law — “what it is really about”[22] — regardless of its stated intention.[23] This characterization process “requires considering both the law’s purpose and its effects.”[24] To do this, the Court first examined the intrinsic evidence of the law’s purpose, which included the text of the GNDA, its structure, and its title.[25] Then, the Court considered extrinsic evidence of the law’s purpose, which included parliamentary debates, committee testimony, and other government publications.[26] Finally, the legal and practical effects of the law were considered.[27]

In its survey of the intrinsic evidence of the law’s purpose, the SCC held that the text of the GNDA, its preamble, and its title were strong evidence that the purpose of the law was to “combat discrimination based on information disclosed by genetic tests by criminalizing compulsory genetic testing, compulsory disclosure of test results, and non-consensual use of test results in a broadly defined context.”[28] The Court noted that genetic tests “reveal highly personal information — details that individuals might not wish to know or share and that could be used against them.”[29] The Court found that the intrinsic evidence suggested that the GNDA’s dominant purpose was to protect this information from being used against individuals without their full and free consent.[30]

Next, the SCC examined extrinsic evidence of the law’s purpose, which included parliamentary debates and committee testimonies concerning the GNDA as it worked its way through the legislative process. Time and time again, members of parliament and senators spoke about the lack of legal protections that “left individuals vulnerable to genetic discrimination and grounded the fear of … [said] discrimination.”[31] Additionally, the Court referenced committee testimony by experts,[32] many of whom focused on the “devastating health consequences” stemming from the “foregoing of genetic testing” out of fear that personal health information revealed by that testing might be used against those being tested.[33]

After examining the evidence of the law’s purpose, the SCC determined that the main legal effects of the GNDA were that it “prohibit[ed] genetic testing requirements and non-consensual uses of genetic test results.”[34] Effectively, the Court found that the GNDA protected individuals from genetic discrimination in a wide variety of circumstances while imposing substantial penalties for violations.[35] In terms of practical effects, the Court determined that the GNDA enables individuals to choose freely, without fear, to undergo genetic testing.[36] Thus, the Court concluded that the GNDA’s provisions give individuals greater control over their private health information, and “encourage individuals to undergo genetic testing …. [that] may in turn produce health benefits, including by enabling earlier detection of health problems.”[37]

In light of this analysis of the law’s purpose and effects, the SCC concluded that the pith and substance of the GNDA was to “protect individuals’ control over their detailed personal information disclosed by genetic tests in the areas of contracting and the provision of goods and services in order to address fears that … test results will be used against them and to prevent discrimination based on that information.”[38] This was somewhat different from the Quebec Court of Appeal’s ruling that the law’s essential character was not to prohibit genetic discrimination in a general sense, but to regulate “agreements … particularly insurance and employment contracts.”[39] For the SCC though, the law’s impact on the insurance industry, while significant, is relatively indirect. In this regard, although the Court acknowledged that Parliament was concerned about potential genetic discrimination in the specific context of the insurance industry, it ultimately concluded that the provisions of the GNDA were not limited to regulating any one specific industry or activity.[40]

However, within the majority of the five Justices, there were two differing opinions on the exact pith and substance of the GNDA, with some Justices reaching a slightly different conclusion than Justice Karakatsanis.[41] Two other Justices found that the pith and substance of the GNDA was not merely to prevent genetic discrimination, but more broadly “to protect [public] health by prohibiting conduct that undermines individuals’ control over the intimate information revealed by genetic testing.”[42] Regardless of this difference, both majority interpretations of the pith and substance of the GNDA lead to the same result in step two of the Court’s analysis.[43]

Step 2- Classification: The GNDA Fits Under Federal Parliament’s Section 91(27) Criminal Law Power

After determining that the essential character of the GNDA was to combat genetic discrimination and the fear of genetic discrimination, the SCC had to “classify” the law under a head of power.[44] More specifically, the Court asked whether the GNDA constitutes a valid exercise of the federal Parliament’s power to make criminal laws, per section 91(27) of the Constitution Act, 1867.[45] In addressing this question, the SCC cited the Margarine Reference, which established that for federal legislation to be characterized as a criminal law, it must fulfill three criteria:[46]

• It is in the form of a prohibition;
• It is accompanied by penalties; and
• It is for a criminal law purpose.

The GNDA fulfilled the first two criteria easily, being prohibitive of genetic discrimination, and containing fines and/or jail time as the penalties for violation.[47] The success of the GNDA’s classification as a criminal law under section 91(27) then hinged on whether the prevention of genetic discrimination constitutes a valid criminal law purpose under the Margarine Reference test.[48] Broadly speaking, a valid criminal purpose has two features. Firstly, “it should be directed at some evil, injurious, or undesirable effect on the public.”[49] Secondly, it “should serve one or more of the ‘public purposes’ or ‘ends’”[50] mentioned in the Margarine Reference, which included “public peace, order, security, health, [and] morality.”[51]

In the GNDA Reference, the SCC held that the GNDA safeguards “autonomy, privacy and the fundamental social value of equality, as well as public health.”[52] The Court recognized the potential, before the GNDA was enacted, for sensitive personal information to be abused and disseminated without an individual’s permission. Furthermore, the Court referenced the broad nature of criminal law powers, citing RJR-MacDonald, which held that Parliament’s criminal law powers are broad, plenary, and must be able to respond to new and emerging matters.[53] The Court noted that genetic mapping and the pace of modern science open up the potential for new threats to personal privacy,[54] and held that it is within Parliament’s power under section 91(27) to protect people from such “emerging threats to [their] privacy, autonomy and equality.”[55]

The SCC also noted that genetic discrimination poses a threat to public health that Parliament is empowered to address via its criminal law powers.[56] It recognized that genetic discrimination and the fear of genetic discrimination can be barriers to an optimized healthcare system.[57] For example, the Court reasoned that if there were no protections in place, individuals may choose to avoid potentially lifesaving genetic testing out of fear that their information could be used against them in the future.[58] The Court concluded that the law directly targets this fear, and ensures necessary protections that can positively impact the public healthcare system as a whole.[59]

In summary, the SCC held that since the GNDA targeted potential harms to privacy, autonomy, equality, and public health,[60] it has a valid criminal purpose and therefore constitutes a valid exercise of the federal Parliament’s exclusive power to make criminal laws.[61]

Conclusion: A Split Decision, But the GNDA Remains in Effect

The GNDA Reference was a difficult case for the Court, with a single vote making the difference. Five of the nine Supreme Court Justices found the GNDA constitutional, while the remaining four Justices argued in dissent that the GNDA unconstitutionally intrudes into the provinces’ jurisdiction over property and civil rights.[62] It was the narrowest of decisions, but it ensures that the GNDA remains a valid law, and will remain in force unless a future parliament repeals it.

According to its proponents, the GNDA was purported to respond to advances in modern science and, in particular, to ensure that individuals can benefit from these advances without suffering discrimination. Given the rapid pace of scientific innovation today, this will not be the last time that governments and courts in Canada grapple with the constitutional implications of regulatory issues that could not have been known when the Constitution Act, 1867 was enacted.

[1] Reference re Genetic Non-Discrimination Act, 2020 SCC 17 at paras 1-4 .

[2] Genetic Non-Discrimination Act, SC 2017, c 3, s 3 .

[3] Ibid at s 5.

[4] Ibid at s 7.

[5] Ibid at ss 8-10.

[6] Olivia Stefanovich “Supreme Court of Canada Upholds Genetic Non-Discrimination Law” (10 July 2020), online: CBC News <https://www.cbc.ca/news/politics/stefanovich-supreme-court-of-canada-genetic-information-1.5643245> [Stefanovich].

[7] Senate, Debates of the Senate, Orders of the Day, 42-1, No 150 (27 January 2016) at 14:50 (Hon James Cowan).

[8] Ibid at 14:30.

[9] House of Commons, Private Members Business, House of Commons Debates, 42-1, No 149 (7 March 2017) at 17:40 (Don Davies).

[10] House of Commons, Private Members Business, House of Commons Debates, 42-1, No 149 (7 March 2017) at 17:25 (Jennifer O’Connell).

[11] House of Commons, Private Members Business, House of Commons Debates, 42-1, No 149 (7 March 2017) at 18:00 (Garnett Genuis).

[12] Peter W Hogg, Constitutional Law of Canada, 5th ed (Toronto: Thomson Reuters, 2007) at chapter 5 at 2.

[13] Constitution Act, 1867 (UK), 30 & 31 Vict, c3, ss 91-92, reprinted in RSC 1985, Appendix II, No 5.

[14] Alanna Crouse, “Falling Between the Jurisdictions: Genetic Discrimination & the Law” (31 March 2020), online (blog): McGill Journal of Law and Health <https://mjlh.mcgill.ca/2020/03/31/falling-between-the-jurisdictions-genetic-discrimination-the-law/>.

[15]  Elizabeth Adjin-Tettey, “Striking the Right Balance: Does the Genetic Non Discrimination Act Promote Access to Insurance?” (2021) 14:1 McGill JL & Health 145 at 158.

[16] John Paul Tasker, “Liberal backbenchers Defy Cabinet Wishes and Vote to Enact Genetic Discrimination Law” (8 March 2017), online: CBC News <https://www.cbc.ca/news/politics/genetic-testing-bill-vote-wednesday-1.4015863>.

[17] Ibid.

[18] Reference of the Government of Quebec concerning the constitutionality of the Genetic Non-Discrimination Act enacted by Sections 1 to 7 of the Act to prohibit and prevent genetic discrimination, 2018 QCCA 2193 at paras 23-26 .

[19] An intervener is a third party the court allows to make arguments about a law or case. See also, “Intervener,”   online: Thomson Reuters < https://ca.practicallaw.thomsonreuters.com/8-507-2484?transitionType=Default&contextData=(sc.Default)#:~:text=A%20party%20in%20a%20litigation%20that%3A&text=Has%20been%20granted%20standing%20by,or%20part%20of%20the%20litigation>

[20] Stefanovic, supra note 6.

[21] GNDA Reference, supra note 1 at para 103.

[22] Ibid at para 29.

[23] Ibid at para 28.

[24] Ibid at para 30.

[25] Ibid at para 35.

[26] Ibid at para 40.

[27] Ibid at para 51.

[28] Ibid at para 39.

[29] Ibid at para 39.

[30] Ibid at paras 38-39.

[31] Ibid at para 45.

[32] Ibid at para 43.

[33] Ibid at para 126.

[34] Ibid at para 52.

[35] Ibid at paras 52-53.

[36] Ibid at para 54.

[37] Ibid at paras 54-56.

[38] Ibid at para 65.

[39] QC GNDA Reference, supra note 18 at paras 10-11.

[40] GNDA Reference, supra note 1 at paras 57-62.

[41] Ibid at paras 111-114.

[42] Ibid at para 136.

[43] Ibid at paras 150-151.

[44] Ibid at para 26.

[45] Ibid at para 66.

[46] Reference re Validity of Section 5(a) Dairy Industry Act, [1949] SCR 1 at 49-50, 1 DLR 433 .

[47] GNDA Reference, supra note 1 at para 68.

[48] Ibid at para 147.

[49] Margarine Reference, supra note 46 at 49.

[50] GNDA Reference, supra note 1 at para 72.

[51] Margarine Reference, supra note 46 at 50.

[52] GNDA Reference, supra note 1 at para 80.

[53] RJR MacDonald Inc v Canada (Attorney General), [1995] 3 SCR 199 at para 28, 111 DLR (4th) 385 .

[54] GNDA Reference, supra note 1 at para 89.

[55] Ibid at para 92.

[56] Ibid at para 73.

[57] Ibid at para 93.

[58] Ibid at paras 97-98.

[59] Ibid at paras 97,102.

[60] Ibid at paras 93,96.

[61] Ibid at para 4.

[62] Ibid at para 272.

Which level of government can make laws on a new matter that is not specifically addressed in Canada’s Constitution? This was the broad issue at stake in the Supreme Court of Canada’s 2021 decision: References re Greenhouse Gas Pollution Pricing Act (“GGPPA Reference”).^[1] In this case, the Court was tasked with determining whether the Constitution permits the federal government to enact a statute — the Greenhouse Gas Pollution Pricing Act (“GGPPA”) — that establishes “minimum national standards of GHG price stringency to reduce GHG emissions.”[2] The Court found that the federal government has the power to enact the GGPPA because the establishment of minimum national standards of GHG price stringency is a matter of national concern.^[3] This decision is significant because not many matters in Canadian history have been designated by the courts as matters of national concern.[4] As such, this case gave the Court a rare opportunity to further clarify what constitutes a matter of national concern under Canadian constitutional law.

This article is Part 2 of a two-part series that explores the majority’s decision in the GGPPA Reference. Part 1 focused on the Court’s characterization of the GGPPA as a law establishing “minimum national standards of GHG price stringency to reduce GHG emissions.”[5] Part 2 examines how the Supreme Court of Canada reached its conclusion that the GGPPA is a valid exercise of Parliament’s legislative power under the national concern doctrine.

The Federal Power to Make Laws for Peace, Order, and Good Government

After a court determines a law’s “pith and substance” (or essential character), the next step in the division of powers analysis is to classify the law under a head of power. This means that the court must identify whether the federal government or the provincial governments have the power to enact the law. A government will only have the power to enact legislation on matters that are assigned to them by the Constitution. The key provisions that set out the division of powers are sections 91 and 92 of the Constitution Act, 1867. Section 91 sets out the powers assigned to the federal government, while section 92 lists the powers assigned to the provincial governments.

In the GGPPA Reference, the Supreme Court determined that the GGPPA was a valid exercise of the federal government’s power to “make Laws for the Peace, Order, and good Government of Canada.”[6] The introductory clause in section 91 of the Constitution Act, 1867 empowers Parliament to make laws for these purposes. This power is commonly called “POGG” (an acronym for peace, order, and good government) and has three branches: emergency, national concern, and residual.

Broadly speaking, the national concern branch allows the federal government to make laws on matters that transcend the boundaries of any one province and that are of interest to the country as a whole. It is a significant finding when a court rules that the national concern branch applies. Once the court finds that a matter is one of national concern, the federal government will have the permanent power to make laws on that matter moving forward.[7]

Judicial History: R v Crown Zellerbach Canada Ltd^[8]

Prior to the GGPPA Reference, the most recent successful use of the national concern doctrine was in Crown Zellerbach in 1988. This case asked whether federal legislation addressing marine pollution and dumping (including in provincial waters) was valid under the national concern doctrine. The Supreme Court of Canada said yes and provided four “firmly established”[9] conclusions on how to analyze whether the national concern doctrine applies to a proposed matter:

1. The national concern branch is distinct from the national emergency branch of POGG;
2. The national concern doctrine applies to new matters and matters that were originally provincial matters but that have become matters of national concern over time;
3. A matter of national concern “must have a singleness, distinctiveness and indivisibility that clearly distinguishes it from matters of provincial concern.”[10] Further, the impact on provincial jurisdiction as a result of granting federal jurisdiction over a matter must be reconcilable with the Constitution’s division of legislative power; and

4. To assess singleness, distinctiveness, and indivisibility, courts should consider whether there would be consequences to extra-provincial interests if provinces failed to regulate the matter.^[11]

The limited history of the national concern doctrine shows that it is only applied in exceptional cases where it is necessary for the federal government to make laws to address distinctly national problems.

Out with the Old, in with the New: Clarifying the National Concern Test

The national concern test set out in Crown Zellerbach remains largely unchanged by the Court’s decision in the GGPPA Reference. However, the Court provided clarity on the application of this rarely used doctrine. The Court began by addressing three preliminary issues.

First, it clarified the “matter” to which the national concern doctrine applies. The Court found that the “matter” is identified in the characterization stage of the division of powers analysis.^[12] In other words, the legislation’s “pith and substance” (or essential character) determines “the breadth and content” of the matter of national concern.^[13]

Second, the Court addressed the impact on the constitutional division of powers when a new matter of national concern is found. When a new matter of national concern is recognized, exclusive and permanent jurisdiction is given to the federal government to make laws that involve that matter. However, the power given to the federal government is limited to the regulation of matters that have a “sufficient connection” to the matter of national concern.^[14]

Third, the Court found that the double aspect doctrine can apply to matters of national concern.[15] A matter is said to have a double aspect when “both levels of government have an equally valid constitutional right to legislate on a specific issue or matter.”[16] This finding is consistent with the principle of cooperative federalism, which holds that federal and provincial jurisdiction may overlap to achieve common goals.[17]

After addressing these preliminary issues, the Court proceeded to articulate and clarify the national concern test. Under this test, there are three steps to determine whether a matter qualifies as a matter of national concern.

1. Threshold Question

The national concern analysis begins by asking whether the matter at issue is of “sufficient concern to Canada as a whole.”[18] At this step, the onus is on the federal government to provide evidence to prove that the proposed matter warrants “consideration in accordance with the national concern doctrine.”[19] As the Court put it, “[t]his invites a common-sense inquiry into the national importance of the proposed matter.”[20]

2. Singleness, Distinctiveness, and Indivisibility

The second step requires courts to find that a matter has a “singleness, distinctiveness and indivisibility that clearly distinguishes it from matters of provincial concern.”[21] There are two principles underlying this requirement.

First, this requirement seeks to prevent federal overreach by ensuring that the doctrine only applies to matters that are not just “specific and readily identifiable,” but also “qualitatively different” from matters of provincial concern.^[22] What then makes a matter “qualitatively different”? The Court set out three considerations for this stage of the analysis. First, a key consideration set out by the Court is: “whether [the matter] is predominantly extra provincial and international in character, having regard both to its inherent nature and to its effects.”^[23] Second, courts can look to related international agreements to see whether the matter has extra-provincial aspects that make it qualitatively different from a provincial matter.^[24] Finally, the federal role must be different than that of the provinces, rather than a duplicate.^[25] This means that federal laws on the matter must be national in character and focused on national goals rather than focusing on issues that “are primarily of local concern.”[26]

Second, federal powers should only be found under this doctrine when “evidence establishes provincial inability to deal with the matter.”^[27] This is commonly known as the “provincial inability test,” which has three criteria.[28] First, the provinces must be “constitutionally incapable of enacting” the legislation alone or in tandem with other provinces.^[29] Second, the failure of one or more provinces to act would endanger the success of the scheme in other parts of the country.^[30] And third, the failure of a province to deal with the matter must have “grave extraprovincial consequences.”^[31]

3. Scale of Impact

The third and final step of the national concern analysis requires the federal government to show that the “scale of impact on provincial jurisdiction … is reconcilable with the fundamental distribution of legislative power under the Constitution.”^[32] The purpose of this final balancing act is to prevent federal overreach and protect against unreasonable intrusions on provincial jurisdiction.^[33]

Summary of the National Concern Doctrine Framework

In sum, to find that a matter is of national concern, the federal government must demonstrate compliance with a three-step test that the Supreme Court of Canada clarified in the GGPPA Reference:

1. Threshold Question: The federal government must prove that the proposed matter is of sufficient concern to the entire country to warrant considering it as a potential matter of national concern.
2. Singleness, Distinctiveness, and Indivisibility: The federal government must demonstrate that: a) the matter is qualitatively different from a matter of provincial concern, and b) the provinces are unable to deal with the matter.
3. Scale of Impact: The federal government must demonstrate that the impact on provincial jurisdiction is reconcilable with the constitutional division of powers.

Matter of National Concern: Climate Change is a “threat of the highest order to the country, and indeed to the world”^[34]

After clarifying the national concern doctrine, the Court turned its mind to classifying the GGPPA, which in this case meant determining whether the matter that the GGPPA seeks to address falls under the national concern branch of POGG. Before beginning the analysis, it is important to note what that matter is. As discussed in Part 1 of this two-part series of articles, the Court did not regard the GGPPA as a law regulating greenhouse gas emissions in general. Instead, the Court narrowly framed the GGPPA as a law establishing minimum standards for pricing GHG emissions in Canada to reduce such emissions.

Creating Minimum National Standards for Greenhouse Gas Pricing is a Matter of National Concern

In the initial, “threshold” prong of the national concern test, the Supreme Court of Canada found that the GGPPA’s subject matter does concern Canada as a whole. Canada has a history of efforts aimed at reducing greenhouse gas emissions.[35] Further, evidence from international bodies shows that carbon pricing plays an important role in reducing emissions.[36] The Court concluded this step of the analysis by stating that “this matter is critical to our response to an existential threat to human life in Canada and around the world.”^[37]

Next, the Court found that the matter meets the second requirement of the national concern test: the requirement of singleness, distinctiveness, and indivisibility. With respect to the first principle underlying this requirement — that the matter is qualitatively different from provincial matters — the Court noted that GHGs are specific and identifiable, that the pollution problem is global in scope, and that international agreements exist and support the conclusion that the matter is more than a matter of provincial concern.[38] With respect to the second principle, the provincial inability test, the Court found that provinces are constitutionally unable to establish minimum national standards for greenhouse gas pricing, that the risk of a province opting out of the scheme could undermine its success, and that legislative inaction would have grave consequences for extra-provincial interests.[39] To illustrate the last point further, the Court remarked that climate change is “causing significant environmental, economic and human harm nationally and internationally, with especially high impacts in the Canadian Arctic, in coastal regions and on Indigenous peoples.”^[40]

Finally, turning to the third requirement of the national concern test (“scale of impact”), the Court found that assigning this matter to the federal government does not unduly disrupt the federal/provincial balance of power. Here, the Court acknowledged that classifying this matter as a matter of national concern would clearly impact provincial jurisdiction.^[41] However, the Court balanced this impact against the federal government’s interest in making laws on greenhouse gas pricing.^[42] In this regard, the Court reasoned that the federal government has an interest in addressing the risk of grave harm that would arise if some provinces did not adopt sufficiently stringent greenhouse gas pricing schemes.^[43] Further, the impact on provincial jurisdiction is limited because it does not prevent provinces and territories from designing their own pricing systems as long as they meet the minimum national standards.^[44]

As all three steps of the national concern test were established, the Court was able to classify the law under the national concern branch of POGG. This means that the federal government has the power to make laws that establish minimum standards in Canada for pricing greenhouse gas emissions for the purpose of reducing emissions. The Court concluded that this matter has a “real, and compelling, federal perspective on [greenhouse gas] pricing, focused on addressing only the well-established risk of grave extraprovincial harm.”[45]

Conclusion

Following an almost three-year debate on whether the GGPPA is valid or not, we finally have an answer. The Supreme Court of Canada definitively settled once and for all that the GGPPA is constitutional. This means that this legislation will remain in force and is likely to be permanent unless a change in government facilitates its repeal. As such, all provinces and territories must have a climate plan in place that aligns with the standards set out by the GGPPA. In reaching this final decision, the Court took the opportunity to provide clarity on the national concern branch of POGG. The GGPPA Reference sheds important light on the three-pronged analysis for determining if a proposed matter falls within federal jurisdiction as a matter of “national concern.”

Now that we have received this decision, what happens next? For many, this decision marks a step forward in Canada’s climate change response and has the potential to facilitate progress towards national and international climate targets. However, provincial governments in Alberta and elsewhere do not see this decision as a victory, but as an intrusion on provincial powers to regulate resource industries.[46] Despite these concerns, the Supreme Court’s decision leaves these critics with no realistic way forward. For the time being, the dispute over the validity of the GGPPA can be regarded as legally settled.

[1] References re Greenhouse Gas Pollution Pricing Act, 2021 SCC 11 .

[2] Ibid at para 57.

[3] Greenhouse Gas Pollution Pricing Act, SC 2018, c 12, s 186 .

[4] See Johannesson v Municipality of West St Paul, [1952] 1 SCR 292, [1951] 4 DLR 609. See Munro v National Capital Commission, [1966] SCR 663, 57 DLR (2d) 753. See Ontario Hydro v Ontario (Labour Relations Board), [1993] 3 SCR 327, 107 DLR (4th) 457.

[5] GGPPA Reference, supra note 1 at para 57.

[6] Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, s 91, reprinted in RSC 1985, Appendix II, No 5.

[7] “Peace, Order and Good Government” (29 June 2021 last visited), online: Centre for Constitutional Studies <https://www.constitutionalstudies.ca/2019/07/peace-order-and-good-government/>.

[8] R v Crown Zellerbach Canada Ltd, [1988] 1 SCR 401, 1988 CanLII 63 .

[9] Ibid at para 33.

[10] GGPPA Reference, supra note 1 at para 105.

[11] Crown Zellerbach, supra note 8 at para 33.

[12] GGPPA Reference, supra note 1 at para 116.

[13] Ibid.

[14] Ibid at para 122.

[15] Ibid at para 126.

[16] “Double Aspect” (29 June 2021 last visited), online: Centre for Constitutional Studies < https://www.constitutionalstudies.ca/2019/07/double-aspect/>.

[17] GGPPA Reference, supra note 1 at para 126.

[18] Ibid at para 142.

[19] Ibid at para 144.

[20] Ibid at para 142.

[21] Ibid at para 145.

[22] Ibid at para 146.

[23] Ibid at para 148.

[24] Ibid at para 149.

[25] Ibid at para 150.

[26] Ibid.

[27] Ibid at para 152.

[28] Ibid.

[29] Ibid.

[30] Ibid.

[31] Ibid at para 153.

[32] Ibid at para 160.

[33] Ibid at para 161.

[34] Ibid at para 167.

[35] Ibid at para 169.

[36] Ibid at para 170.

[37] Ibid at para 171.

[38] Ibid at paras 172-80.

[39] Ibid at paras 182-87.

[40] Ibid at para 187.

[41] Ibid at para 197.

[42] Ibid at para 198.

[43] Ibid.

[44] Ibid at para 200.

[45] Ibid at para 211.

[46] Elise Von Scheel, “Kenney concerned carbon tax ruling enables future intrusions on provincial jurisdiction” (25 March 2021), online: CBC < https://www.cbc.ca/news/canada/calgary/kenney-alberta-carbon-tax-reaction-environment-1.5963722>.

In 2018, the federal government put a price on greenhouse gas emissions across Canada with its Greenhouse Gas Pollution Pricing Act (“GGPPA” or “the Act”).[1] Since its inception, the GGPPA’s validity has been contentious. The provinces of Alberta, Ontario, and Saskatchewan asked their respective Courts of Appeal whether the federal government has the constitutional power to enact the GGPPA. While both Ontario’s and Saskatchewan’s Courts of Appeal ruled that the GGPPA was within the federal government’s power and therefore valid, Alberta’s Court of Appeal found that it was not.

Finally, on March 25, 2021, the Supreme Court of Canada weighed in on the issue and released its References re Greenhouse Gas Pollution Pricing Act (“GGPPA Reference”) decision.[2] A majority of the Court found that the GGPPA is constitutional. To reach its decision, the Court had to determine the law’s “pith and substance” (or its “essential character”) before asking whether the Constitution permits the federal government to make such a law.[3] This article is Part 1 of a two-part series that reviews the Supreme Court of Canada’s majority decision in the GGPPA Reference. Part 1 examines how the GGPPA prices carbon-based products, and what the law’s essential character is. Part 2 will examine how the Supreme Court of Canada determined that the GGPPA is a valid exercise of Parliament’s legislative power.

The Division of Powers: No, the Federal Government Cannot Make Laws on Everything

The main question in the GGPPA Reference is whether the federal government has the constitutional power to make laws that create minimum standards for pricing greenhouse gas emissions. This issue exemplifies Canada’s federal system in which two levels of government, the federal and the provincial, have powers to govern in particular areas. In this regard, sections 91 and 92 of the Constitution Act, 1867 divide legislative powers between the provincial legislatures and federal Parliament. This means that the federal Parliament cannot make laws relating to just any matter it finds important. Instead, federal laws must be within Parliament’s legislative authority as set out by the Constitution.

Insofar as it concerns Parliament’s constitutional power (or lack thereof) to enact the GGPPA, the GGPPA Reference is a federalism-based constitutional challenge. Courts approach these federalism-based issues by way of a division of powers analysis. First, a court must characterize the law. To do this, the court will consider the purpose and effects of the impugned legislation to identify its essential character or “pith and substance.” Second, once the court identifies the law’s pith and substance, it must classify the law under section 91 or 92 of the Constitution Act, 1867. This article focuses only on the first of these steps: the characterization or “pith and substance” analysis.

Climate Change is a “grave threat to humanity’s future”[4] and the GGPPA is Parliament’s Response to This Threat

To clarify, the GGPPA’s pricing schemes only apply to provinces that lack a sufficiently stringent carbon pricing scheme of their own. Whether a specific person or organization is responsible for paying the charges depends on which part of the Act applies to that particular party. The GGPPA has 4 parts in total, but only Parts 1 and 2 were at issue in the GGPPA Reference.

Part 1: Fuel Charge

Part 1 of the GGPPA establishes a fuel charge on certain carbon-based fuel products specified in the Act. This fuel charge applies to producers, distributors, and importers. Although this charge is not directly levied on consumers of energy products, the cost of the charge will likely be indirectly passed onto consumers through higher energy prices.[8] Despite paying higher energy prices upfront, consumers can expect to get some money back. Currently, 90% of the funds generated by this fuel charge are distributed through consumer rebates.[9]

Part 2: Industrial Greenhouse Gas Emissions

Industrial facilities are not exempt from charges. Part 2 of the GGPPA sets out a separate carbon pricing system for industrial facilities that emit large amounts of greenhouse gas emissions.[10] This system is called an output-based pricing system (“OBPS”). The OBPS only applies to covered facilities. A covered facility does not have to pay the fuel charge set out in Part 1 of the Act. However, the OBPS requires industrial facilities to pay for emissions in excess of a set limit.

Not all industrial facilities will qualify as a covered facility. The Output-Based Pricing System Regulations set out the criteria for a covered facility.[11] If a facility does not meet the criteria, the Minister of the Environment has the authority to designate a facility as a covered facility.

The GGPPA Sets Out Minimum National Standards that Operate as a Backstop

One of the Court’s findings in the GGPPA Reference was that the GGPPA acts as a backstop and does not displace the ability of provinces or territories to create their own carbon pricing systems.[12] As such, provinces and territories can create their own policies to meet greenhouse gas emission reduction targets that reflect their own circumstances as long as the policies meet the minimum standards imposed by the GGPPA.

Parts 1 and 2 of the GGPPA will not apply to a province or territory that has implemented a sufficiently stringent greenhouse gas pricing system. The GGPPA’s fuel charge and OBPS will only apply in a province or territory if:

• the Governor in Council determines that the province or territory does not have a sufficiently stringent system in place to meet the minimum national standards;
• the province or territory requests that it apply; or
• the province or territory does not have any greenhouse gas pricing system in place.[13]

Characterization: The Pith and Substance of the GGPPA is to Establish Minimum National Standards of Greenhouse Gas Price Stringency

To determine whether the federal government can validly enact legislation creating minimum standards for greenhouse gas pricing schemes across Canada, the Supreme Court first had to “characterize” the GGPPA.  That is, the Court had to identify the law’s essential character (known as its “pith and substance”). In doing so, the Court adopted a narrow characterization of the GGPPA: “the true subject matter of the GGPPA is establishing minimum national standards of GHG price stringency to reduce GHG emissions.”[14]

To arrive at this characterization, the Court considered intrinsic and extrinsic evidence regarding the GGPPA’s purpose, as well as its legal and practical effects. It first considered the intrinsic evidence, which involves an assessment of the legislation itself to determine what it really means. To be more precise, this entailed an analysis of the GGPPA’s text including the statute’s long and short title, the preamble, and its references to the UNFCCC, the Paris Agreement, and the Pan-Canadian Framework.[15] Next, the Court looked to the extrinsic evidence regarding the law’s purpose, which included parliamentary debates and background documents. This provided the law’s background and historical context, which led the Court to conclude that the GGPPA is concerned with pricing greenhouse gas emissions.[16]

Finally, the Court assessed both the legal and practical effects of the GGPPA. Beginning with the legal effects, the Court found that Parts 1 and 2 of the GGPPA create a greenhouse gas pricing scheme that prices emissions in a way that is consistent with other provinces in Canada.[17] Due to the GGPPA’s backstop nature, these legal effects only apply if the Governor in Council determines that Part 1 or 2 of the Act should apply to a specific province. As such, provinces and territories are still able to establish their own greenhouse gas pricing policies to meet emission reduction targets as long as they meet the standards set out by the GGPPA. These legal effects show that the GGPPA focuses on setting minimum standards for greenhouse gas pricing.

With respect to the practical effects, the Court noted that it is difficult to definitively say what the GGPPA’s consequences are because the legislation has been in force for a short time.[18] However, the Court found that practically, the only thing a province or territory cannot do under the GGPPA is to not implement a greenhouse gas pricing scheme at all or to implement one that does not meet the GGPPA’s national standards.[19] After considering the purpose and effects of the GGPPA, the Court finally concluded that the pith and substance of the GGPPA is “establishing minimum national standards of GHG price stringency to reduce GHG emissions.”[20] This narrow construction of the law’s pith and substance led the majority to later classify the law as a matter of national concern and, hence, as constitutionally valid exercise of Parliament’s legislative power. The GGPPA’s classification is the focus of Part 2 of this article series.

Broad or Narrow Characterization? Does it Matter?

How a law is characterized, narrowly or broadly, has the potential to impact how a court determines the constitutionality of an impugned law. If a law’s pith and substance is characterized too broadly, it can be difficult to fit it under a specific head of power without intrusions on another level of government’s jurisdiction. A narrow characterization, on the other hand, will likely interfere less with another jurisdiction’s legislative authority.

The GGPPA Reference demonstrates the consequences of choosing a narrow characterization over a broad one. While the majority adopted a narrow view of the law’s pith and substance, Justice Brown (with Justice Rowe agreeing on this point) took a more expansive, broad view in dissent. Parts 1 and 2 of the Act were characterized separately by the dissenters: Part 1 as reducing GHG emissions by “raising the cost of fuel” and Part 2 as reducing GHG emissions by “pricing emissions in a manner that distinguishes among industries based on emissions intensity and trade exposure.”[21] This broad characterization likely led to the dissenting Justices finding that the GGPPA constitutes an impermissible intrusion on provincial jurisdiction.

Conclusion

Since the enactment of the GGPPA in 2018, there has been polarized debate on whether the federal government has the power to put a price on greenhouse gas emissions. Finally, the Supreme Court of Canada weighed in with its judgment in the GGPPA Reference. The majority of the Supreme Court of Canada concluded that Parliament’s GGPPA is constitutional. This means that the federal government can validly put a price on greenhouse gas emissions.

Identifying a law’s pith and substance is an important first step in determining whether a government has the power to enact a certain law. Once the law’s essential character is identified, courts can determine whether it falls under a provincial or federal head of power. In the GGPPA Reference, the majority adopts a narrow view of the GGPPA, concluding that the GGPPA’s pith and substance concerns the reduction of greenhouse gas emissions by establishing minimum national standards of greenhouse gas pricing.

A second article will continue reviewing the Court’s division of powers analysis by looking at its next step: classification under a head of power.

[1] Greenhouse Gas Pollution Pricing Act, SC 2018, c 12, s 186 .

[2] References re Greenhouse Gas Pollution Pricing Act, 2021 SCC 11 .

[3] “Pith and Substance” (18 June 2021 last visited), online: Centre for Constitutional Studies <https://www.constitutionalstudies.ca/2019/07/pith-and-substance/>.

[4] GGPPA Reference, supra note 2 at para 2.

[5] Government of Canada, “The Paris Agreement” (6 January 2016), online: Government of Canada <https://www.canada.ca/en/environment-climate-change/services/climate-change/paris-agreement.html>.

[6] GGPPA Reference, supra note 2 at para 13.  

[7] GGPPA, supra note 1, Preamble.

[8] GGPPA Reference, supra note 2 at para 30.

[9] Ibid at para 31.

[10] Ibid at para 34.

[11] Output-Based Pricing System Regulations, SOR/2019-266.

[12] GGPPA Reference, supra note 2 at para 27.

[13] Ibid at paras 18, 27.

[14] Ibid at para 57.

[15] Ibid at paras 58-61.

[16] Ibid at paras 62-69.

[17] Ibid at para 71.

[18] Ibid at para 78.

[19] Ibid at para 79.

[20] Ibid at para 80.

[21] Ibid at para 340.