No Implied Amendment

 Here is a cogent comment I received in regard to my suggestion to use s. 90 of the Constitution Act, 1867 to disallow any provincial laws passed incorporating the notwithstanding clause found in section 33 of the Constitution Act, 1982. 

Even as a legal matter, that is a dubious theory. You propose to use a ~150 year old provision to counteract a SUBSEQUENT clear legislative intent to allow provinces to unilaterally override the charter. That seems to fly in the face of principles of legislative interpretation.

So this a good legal argument and I expect it would be used if this matter every came to Court. It is a sort of a distant cousin of the "convention" argument but better, I think. But it is, I believe, not a winning argument. For a number of reasons. 

Firstly, all of the Constitution Act, 1867 is 150 years old, not just section 90. There is no doubt that the 1867 Act continues in force, including s. 90, the disallowance power. It is true that s. 33 was meant to allow provinces to unilaterally void parts of the Charter of Rights, but it is a provision that has to exist in the context of the rules in the 1867 Constitution Act. For example, there is in section 31 of the Charter the following statement, "Nothing in this Charter extends the legislative powers of any body or authority."  Clearly the division of powers, including section 90, arguably, were not to be taken to have been left behind by the major changes made in 1982. 

So the use of the word "counteract" in the criticism above is a little vague isn't it? I mean what is the process that the critic is anticipating would be used in court against section 90? The Court, I suppose, would say, "ah ... section 90 was used, but it can't ... ah ... counteract s. 33, so it didn't void the provincial law in question, but maybe it could be used to void a provincial law that didn't rely on section 33 ... maybe." Either section 90 exists and it can void any provincial law, including a law relying on section 33, or it doesn't. But, of course, it does exist. 

Further to that point, section 90 of the Constitution Act, 1867, is a constitutional provision. The ordinary rules of legislative interpretation have to be, therefore, tempered - to assume that s 33 of the 1982 Act has, in fact, amended section 90 of the 1867 Act out of existence would be to assume that a major constitutional amendment had been made by inadvertence. Hardly likely. 

I am confirmed in this thinking by the fact that Professor Hogg, hardly a friend of section 90, did not advance this "implied amendment" theory in his attack on section 90 in his constitutional law textbook. 

In addition, in the text of the Charlottetown Accord section 90 was slated for removal by way of an actual constitutional amendment. Which is very clear evidence that the provinces were trying to do in 1992 what they failed to do in 1981. Which is also clear evidence, should more be needed, that section 90 remains fully in force and equally valid constitutionally as section 33. Perhaps more so.

 Frankly, if section 90 was only used to disallow provincial laws that attempted to rely on section 33, then it would actually be advancing the fundamental principles of Canadian constitutional democracy, which is not something that can be said of section 33, the evil notwithstanding power.