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Hogan v Newfoundland (Attorney General), 2000 NFCA 12

Facts:

The Governor General proclaimed into force an amendment to the terms of the union between Canada and Newfoundland. The plaintiffs claim to represent the Catholic Church, and say the amendment is unconstitutional and is in breach of contract. – all children would go to the same school regardless of religion and religious education could be provided. The amendment was voted on, and it passed in Newfoundland. An amendment was made to the Constitution, Term 17 (Terms of Union) – cuts out public funding for catholic schools – say it would infringe on minority right (violated UCPs)

Issue(s):

How should constitutional amendment be done?
Was Term 17 of the Constitution amended properly? Which of the 5 amending formulas must be used to amend Term 17? Did Newfoundland follow the proper amending formula? (YES)

Ratio:

It is not possible to require more then one amending formula – only 1 will apply and you must find that one = NOT CUMULATIVE
**Complete Code: Alternate not cumulative (Hogan)

There is no constitutional requirement to hold a referendum
**Even if you hold one and you butcher the process it does not effect the validity of the constitutional amendment

Analysis:

They voted on a referendum – and because of that referendum the issue of amending the Constitution was brought to the House of Commons, and a recommendation was made to the House that they accept this, and they did.

Part 5 of the Constitution creates alternative methods of amendment, not cumulative methods.

They argue - Sine a referendum (passed in 47 of the 48 constituents) was made, and they only got 72%, then amendment that followed the referendum is of no force.
**There is no constitutional requirement to hold a referendum
***Even if you hold one and you butcher the process it does not effect the validity of the constitutional amendment

Holding:

The appropriate provision in Part 5 was complied with – the validity of the amendment cannot be questioned.

Comments:

Narrowed the scope of the secession reference regarding obligation to negotiate – there isn’t always an obligation to negotiate


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