The Application of the Charter to Legislation Unilaterally Amending the Constitution of Canada under Section 44 of the Constitution Act, 1982

Abstract

In this article, we develop the argument for why the Charter should apply to federal legislation implementing amendments under section 44. We make this argument for three reasons: 1) the Charter applies to all legislation, whatever a statute’s effect or impact; 2) the need for symmetry between the application of the Charter to federal legislation enacted by the unilateral federal amendment procedure in section 44, and provincial legislation amending the provincial constitution enacted under the unilateral provincial amendment procedure in section 45 of the Constitution Act, 1982, which the courts have already held to be subject to the Charter; and 3) for prudential reasons, given the potentially severe, negative consequences for Canadian democracy and the right to vote if the Charter does not apply to legislation amending the Constitution’s provisions on representation.