Canadian Politics from Canada's Centre

Wednesday, March 07, 2007

Boisclair's Constitutional Dyslexia

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Andre Boisclair just doesn't understand our Constitution. The man reads things the way he wants to see them, in a sort of Constitutional dyslexia, if you will. The PQ leader makes a ridiculous argument that in the event of a referendum favourable to separatism, Quebec's territorial integrity would not be compromised. Basing an argument on the Constitution cuts both ways...

According to article 43 of our Constitution, the boundaries of a province could not be modified except in accordance with the that province's legislature. Well and good in normal circumstances, but when Mr. Boisclair tries to apply this to the situation that would exist post-Yes-referendum, his argument falls apart.

By turning Quebec into a separate country, Canada's Constitution would no longer apply. Therefore, it is irrelevant whether article 43 requires provincial consent to a change in borders, because that article would not be applicable.

Second, even if somehow the Constitution could be found to apply, separatism violates its fundamental purpose. That purpose is the federation of the provinces into a single polity. When courts interpret a law (and if Boisclair is arguing for 43, then there would obviously be a Constitutional reference for the Supreme Court of Canada to decide), they consider the legislator's intention, as for example in the famous Oakes test. Clearly, the SCC would not rule in favour of a violation of the fundamental aim of the Constitution.

Third, one part of the Constitution can't be used to argue against another part. So even if interpreting the aim of the Constitution was disregarded, the aim could be considered as a part of the Constitution. Thus, article 43 would be working in opposition to another part of the Constitution, and could not be relied upon. I'll edit this once I find the case where the SCC stated this principle.

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3 Comments:

At 1:47 PM, Canadian Politico Blogger Wassabnes said:

There seems to be a lot of conclusions here you article with a very short circuited logic...

"By turning Quebec into a separate country, Canada's Constitution would no longer apply. Therefore, it is irrelevant whether article 43 requires provincial consent to a change in borders, because that article would not be applicable."

So I guess you would agree that the provincial integrity be preserved up to the actual day of separation. So on the day of separation, boundaries would be the same as usual. Why not conclude they would be the same way the day after?

"Second, even if somehow the Constitution could be found to apply, separatism violates its fundamental purpose."

Really? Says who? Legislator made no mention of separation in there, so you are reading into the consititution something that is not there.

I think you are presenting a very speculative picture here with not enough substance to ensure the conclusion is solid. I realize this is a blog and not an essay or a S.C. judgment, but I think your conclusion on Andre Boisclair's perception on the consitution is not substantiated.

 
At 1:51 AM, Canadian Politico Blogger lecentre said:

You could conclude they'd be the same way. That's besides the point. The point is that Boisclair thinks the Constitution can apply when it suits him, which is patently false. If Quebec tries to separate, it will obviously be repudiating the Constitution. Therefore, he cannot rely on 43.

The fundamental purpose of Confederation was to unity the various loyalist colonies. Obviously separation wasn't mentioned because that wasn't their goal. I'm not reading anything into the Constitution, I'm taking into account the historic context in which the Constitution was written.

 
At 3:13 AM, Canadian Politico Blogger erniethegood said:

One of the most remarkable & controversial bills was passed through Parliament with little more than a nod from the majority of parliamentarians & the media. No one, not even the media, apparently deemed it worthwhile to examine Parliament’s rights within the Constitution to make the Province of Quebec a State within our country.
Permit me to provide you with a little preamble from another source.

Canada’s Constitution and the laws that give us our most basic rights and freedoms, is under attack. It was codified and its components identified in 1982 by Parliament and, with a few relatively minor amendments, it has not changed since 1993.

Our Constitution was designed to protect us from the excesses of governments at all levels in Canada, but it has been under constant assault for years, and there have been a number of laws, enacted or proposed, that effectively block, restrict, trammel or eliminate rights it enshrined for us all. This is not empty rhetoric.

Who will defend the Constitution? Who will defend what is, at the basic level, Canada? Certainly not our governments, for they, their agencies or their tribunals, are the ones making unconstitutional laws and regulations. In fact, they will often staunchly defend such laws, and pay for that defence with our tax money.

There are no Constitutional police or prosecutors. We must all do what we can to defend our rights and the rights of our neighbours, but we have only ourselves to provide the required time and effort, which can often be significant, but sometimes it needs only a word said at the right time and place. Every time a law is passed, or a tribunal decision made, or a regulation issued that constrains some aspect of the Constitution, it constrains the rights of all of us, even if that law, decision or regulation is directed at only a few of us.

Our elected governments have the right to enact laws, of course, but only those laws that are constitutionally valid, only if the government’s don’t restrict existing Constitutional rights. We fully recognize the difference between the normal operation of our system of government, and the abuse of it by a few of those within it, or some component of it.


In view of the foregoing, permit me to pose my question.
Can our MPs create the “State of Quebec” within Canada without modifying our Constitution?
I personally would find it a remarkable piece of political manoeuvring when one considers Quebec has never endorsed the Canadian Constitution.
To conclude permit me to include a brief summation from another reliable source.
“Off the top of my head, without having researched these questions, it seems that a motion passed by Parliament does not have constitutional status, and there is no immediate impact, especially with the term "nation" not being given a specific definition.”

On such a controversial subject I find it somewhat incredible that our news media has not challenged this legislation

 

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