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Key line for me... "The Acts and orders of the Constitution of Canada are not empty vessels to be filled by individual provinces unilaterally. What these provinces are attempting is to have the national constitution confer recognition of matters to which none of the other partners of Confederation agreed."

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Nov 8, 2022·edited Nov 8, 2022

Question from a student here, do you consider Section 92 of the Constitution of Canada to be, as you said, an “element” of Provincial Constitutions? Could a province design an amendment to that section that would be exclusive enough to that province?

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author

I wouldn't regard Section 92 as part of the provincial constitution, no. But whether an amendment could be made to the division of powers in relation to one or more, but not all, provinces would at minimum require the bilateral procedure. But I'm not sure such an amendment would make sense to the federal level (powers available to one province should at least be available to all, even if not all use them). I also suspect many experts would argue the general amending procedure must be used for any changes to sections 91 or 92.

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Thanks, that’s beyond helpful. If I may, I just have one more question. If the Saskatchewan First Act came before the Supreme Court, and the reasons for the Act being struck down provided precedent that would include Bill 96, would the notwithstanding clause still protect Bill 96 from that Supreme Court precedent?

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The notwithstanding clause only applies to particular sections of the Charter of Rights. Quebec cannot use it to protect unconstitutional amending provisions.

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