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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