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Contribution to Book
The Constitutional Priority of the Charter
Competing Constitutional Visions: The Meech Lake Accord (1988)
  • Brian Slattery, Osgoode Hall Law School of York University
Abstract
What rules determine the relative priority of the various Constitution Acts among themselves? In particular, how do the Constitution Act, 1982 and the Canadian Charter of Rights and Freedoms stand relative to constitutional provisions enacted after 1982? To what extent do they have the capacity to control later amendments? Various answers might be given to this question. This paper looks first at an answer with strong initial appeal. This invokes a principle of sequential ordering, which maintains that the priority between constitutional enactments is determined simply by the temporal sequence in which they were enacted. While this approach admits that some parts of the Constitution are of greater importance than others in a political or moral sense, it holds that this factor is irrelevant in assessing the impact of an amendment on the existing constitutional framework. Despite the appeal of a strict sequential approach, this paper argues that it is inadequate. The relative priority of co-ordinate constitutional provisions is not governed simply by their sequence of enactment. Regard must also be given to their constitutional weight and the organic relations they bear to one another. This second view, then, upholds a principle of organic ordering, which integrates both sequential and structural considerations but subordinates them to an understanding of the Constitution as a functioning whole.
Keywords
  • Constitution of Canada,
  • Canadian constitutional law,
  • Canadian Charter of Rights and Freedoms,
  • Relative priority of Constitution acts,
  • Constitution Act 1982
Disciplines
Publication Date
1988
Editor
Katherine Swinton and Carol Rogerson
Publisher
Carswell
Citation Information
Brian Slattery. "The Constitutional Priority of the Charter" TorontoCompeting Constitutional Visions: The Meech Lake Accord (1988) p. 81 - 93
Available at: http://works.bepress.com/brian_slattery/106/