The Bilateral Amending Formula as a Mechanism for the Entrenchment of Property Rights Dwight Newman* Introduction texts. They are present in the Canadian Bill of Rights,4 which remains in force, but this statuto- Moves are once again underway to seek to con- ry Bill of Rights has received little attention and stitutionally entrench property rights, with dis- has been of limited effect in the post-Charter cussion occurring on the idea in a variety of era.5 Property rights did not become part of the contexts. In early 2011, federal Member of Par- main constitutional reform packages of the late liament (MP) Scott Reid and Ontario Member 1980s through to the mid-1990s despite a 1988 of Provincial Parliament (MPP) Randy Hillier vote in principle in favour of entrenching them.6 announced their intention to introduce private Therefore, the contemporary proposal to use s. member’s bills in their respective legislative as- 43 to entrench property rights in the Constitu- semblies that would entrench property rights.1 tion offers a potentially straightforward demo- They proposed to do so via the legal mechanism cratic route around protracted negotiations and of using the bilateral amending formula in s. 43 constitutional stalemate. of the Constitution Act, 1982, which allows for a constitutional amendment “in relation to any Though constitutional reform efforts from provision that applies to one or more, but not the late 1980s to the mid-1990s appeared to all provinces” to be made by just the affected create barriers to further constitutional modi- province(s) and Parliament.2 Thus, if both had fication, a substantial number of constitutional been adopted, their bills would have entrenched amendments have actually succeeded since that property rights in Ontario through the addition time, during a period that many would have of a new subsection in the Canadian Charter of seen as one of stagnation on the constitutional Rights and Freedoms. Although these particu- reform front. The potential of s. 43 in this con- lar bills were not introduced or adopted there is text is beginning to be noticed. every reason to think that efforts to do so will Section 43 has provided a legal route to a continue.3 number of constitutional amendments since Having been omitted from the original 1982. These include four instances in New- text of the Charter, and not having made their foundland (three to modify denominational way into a constitutional amendment, property school rights7 and one to change the name of rights remain outside Canadian constitutional the province8), one in Quebec to end denomi- Constitutional Forum constitutionnel 17 national school rights,9 one in Prince Edward gal barriers to constitutional amendment that Island to allow a bridge instead of a ferry as its makes s. 43 an appealing route in this context. mainland link,10 and one in New Brunswick to Second, the article considers whether, given the add an entirely new section to the Constitution: precedents described above, s. 43 provides the s. 16.1 of the Charter of Rights and Freedoms possibility of entrenching property rights with- now guarantees rights to that province’s Eng- in a particular province. In doing so, the article lish and French linguistic communities.11 argues that such entrenchment is neither legally nor conceptually problematic even though it These amendments have, in some instanc- may result in a regime of provincially differen- es, been the subject of legal challenge. The re- tiated property rights. Third, it considers what sult is that we now also have a body of judicial becomes possible under s. 43 if property rights precedents on the use of s. 43. Notably, the uses are entrenched using this section, or, in other by Newfoundland and Quebec to modify de- words, considers the question of how far s. 43 nominational school rights were permitted at would be opened up for other uses by its use in 12 an appellate level, with leave to appeal to the this context. The article ultimately argues that Supreme Court of Canada refused in each in- the existing law on s. 43 is ripe for its use to en- 13 stance, despite arguments that they modified trench property rights. It also argues that con- the rights and/or mobility of religious minori- cerns about the consequences of using s. 43 are ties in terms going beyond their respective prov- not new as they have already been raised in the 14 inces. Supreme Court of Canada obiter on s. 43 context of other amendments. has similarly suggested a broad reading of the provision, with Beetz J. having once described it in passing as “a flexible form of constitutional Contemporary Legal Barriers to amendment” that was designed to allow par- Constitutional Amendment ticular provinces to develop in diverse ways.15 The constitutional amending formula included Recent scholarly opinion supports a rela- in our patriated Constitution after 1982, was 16 tively unrestricted reading of s. 43. At one not exactly straightforward.22 However, an ac- time, s. 43 was perceived as permitting only the cretion of statutory requirements adopted in modification of existing Constitutional provi- the context of past constitutional reform ef- 17 sions rather than the creation of anything new, forts since that time has made constitutional but this position has most recently been reject- amendment even more complex. These compli- 18 ed. The use of s. 43 to add s. 16.1 to the Charter cations drive the desire to resort to s. 43. How- was a watershed moment, albeit perhaps not yet ever, the resort to s. 43 is not an answer to every 19 widely recognized as such. Section 16.1 was complication. an entirely new section and not a modification of existing text.20 If its introduction was a per- In 1996, Parliament adopted legislation de- missible use of s. 43, and there seem to be no signed to provide for a type of regional veto on challenges to it, then it appears s. 43 can be used federally proposed constitutional amendments, to add an entirely new section to the Charter. the Act Respecting Constitutional Amend- Moreover, given the nature of this precedent, s. ments.23 The legislation stated that: “[n]o Min- 43 can be used to add a section to the Charter ister of the Crown shall propose a motion for that relates to fundamental rights even where a resolution to authorize an amendment to the the protection of those rights will differ from Constitution of Canada, other than an amend- province to province, at least initially and po- ment in respect of which the legislative assem- tentially longer-term.21 bly of a province may exercise a veto under sec- tion 41 or 43 . or may express its dissent under In the context of property rights, the ques- subsection 38(3) of that Act,” except where the tion that arises is what these precedents imply resolution already had majority provincial for the proposed use of s. 43 to entrench them support and met the regional requirements it in the Charter. To analyze this point, this ar- established.24 ticle first examines the set of contemporary le- 18 Volume 21, Number 2, 2013 The use of s. 43, it bears noting, qualifies for Provincially Differentiated Property an exception listed in the text of this provision; it would be illogical, after all, to create a region- Rights al veto on amendments affecting a single prov- The Reid-Hillier resolution to entrench proper- ince which could only be achieved under the ty rights would add section 7.1(1) to the Charter: constitutional text through agreement between that province and Parliament. It also bears not- 7.1 (1) In Ontario, everyone has the right not to ing that because s. 43 is effectively an exception be deprived, by any Act of the Legislative As- to the regional veto rule, it would not be neces- sembly or by any action taken under authority sary for the current proposal on property rights of an Act of the Legislative Assembly, of the title, use, or enjoyment of real property or of to proceed by way of a private member’s bill for any right attached to real property, or of any constitutional amendment as there could be a improvement made to or upon real property, bilateral constitutional amendment under s. 43 unless made whole by means of full, just and by way of government-sponsored legislation. timely financial compensation.28 However, the use of private member’s bills could offer a route around the regional veto rules in The inclusion of such a section in the Charter the Act Respecting Constitutional Amendment would have the effect of providing constitu- in other circumstances or might also be used to tionalized protection against expropriation of try to lessen perceived partisan considerations property, but only in the province of Ontario on a proposed amendment. unless other provinces adopted similar amend- ments. Given the precedent established for the Other statutory developments concerning use of s. 43 to add s. 16.1 to the Charter, it ap- constitutional amendment are not as easily ad- pears that there is no line of argument against dressed by the use of s. 43. For example, Alber- amendment of the Charter using the bilateral ta’s statutory frameworks now require the use amending formula.29 Further, as Constitutional of a referendum prior to any vote in its legisla- amendments altering denominational rights, tive assembly concerning an amendment to the religious minority rights, and linguistic minor- Constitution of Canada.25 British Columbia has ity rights have all been permissible under s. 43, a similar provision concerning any government it appears the section can certainly be used to resolution to amend the Constitution of Cana- amend rights-related provisions.