![]() ![]() Ultimately, I believe that this confused and contradictory view of the Constitution of Canada flows from two of its features: first, the fact that it is a hybrid of both codified elements and uncodified principles and conventions and second, because the five amending formulas within Part V of the Constitution Act, 1982 do decline along a hierarchy of high threshold and high veto potential to low threshold and no veto potential, in other words, from the unanimous, to the multilateral, to the bilateral, and, finally, to the unilateral. Only that which conforms to and propagates the modern-liberal political project of individual rights and individual self-fulfillment, autonomy, and sovereignty enjoys the privilege of becoming “constitutional.” As one of my colleagues pointed out, even the Department of Justice’s website perpetuates this narrative that the Charter (minus the Notwithstanding Clause) is more constitutional than the rest of the Constitution of Canada by literally placing it above the consolidated Constitution Acts, 1867-1982 as a whole (which includes the Charter). Prime Minister Trudeau II even lent credence to the view that the Notwithstanding Clause is somehow less constitutional that the rest of the Charter, saying: “I will trust that Ontarians will reflect whether or not the provincial government made the right decision on overriding the Charter of Rights and Freedoms on this issue.” In particular, the Charter of Rights and Freedoms – except, of course, for section 33, the Notwithstanding Clause – are seem as more legitimate and more “constitutional” than the other provisions of the Constitution Act, 1982, the various British and Canadian statutes and executive instruments in the schedule of the Constitution Act, 1982, and all of the provisions and schedules of the Constitution Act, 1867, formerly known as the British North America Act, 1867. ![]() This recent controversy has brought to the fore an interesting and perhaps unique feature of Canadian constitutionalism: all parts of the Constitution of Canada are constitutional, but some parts are more constitutional than others. ![]() On 10 September 2018, Justice Belobaba of the Ontario Superior Court of Justice struck down the provisions of the Better Local Government Act reducing the size of Toronto City Council by half and using the federal and provincial electoral districts as the basis for the City of Toronto’s new wards, as unconstitutional Premier Ford, in turn, announced that the government will introduce a bill re-acting these provisions under the Notwithstanding Clause. This tautology, fittingly, sounds very obvious and simple – yet it still bears repeating with respect to the Constitution of Canada, a confounding Cherub (like that in the Book of Ezekiel) composed of disparate, even contradictory, parts that ought not fit together yet must fit together and reconcile with one another. It follows therefore that one part of the constitution cannot be used to strike down or nullify another part of the constitution. The constitution cannot be unconstitutional. ![]()
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