Introduction
The constitution cannot be unconstitutional. It follows therefore that one part of the constitution cannot be used to strike down or nullify another part of the constitution. This tautology, fittingly, sounds very obvious and simple – yet it still bears repeating with respect to the Constitution of Canada, a confounding Cherub (like that in the Book of Ezekiel) composed of disparate, even contradictory, parts that ought not fit together yet must fit together and reconcile with one another.
On 10 September 2018, Justice Belobaba of the Ontario Superior Court of Justice struck down the provisions of the Better Local Government Act reducing the size of Toronto City Council by half and using the federal and provincial electoral districts as the basis for the City of Toronto’s new wards, as unconstitutional; Premier Ford, in turn, announced that the government will introduce a bill re-acting these provisions under the Notwithstanding Clause. This recent controversy has brought to the fore an interesting and perhaps unique feature of Canadian constitutionalism: all parts of the Constitution of Canada are constitutional, but some parts are more constitutional than others.
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