Notwithstanding Clause In The Canadian Charter Of

Rights And Freedoms Essay, Research Paper

The inclusion of the Notwithstanding Clause in the Canadian Charter of Rights and Freedoms was an invaluable contribution in the evolution of the liberal democratic state. Not an endpoint, to be sure, but a significant progression in the rights protection dynamic. Subsequent to its passage in 1982 it became the primary rights protecting mechanism, however, its raison d`etre was as a neccessary concession, the pivotal factor allowing the patriation of the constitution. Many legislators present at the constitutional conference in 1981 opposed in varying degrees the entrenchment of a “bill of rights” in the constitution. The premier of Saskatchewan, Allan Blakeney, A preeminent liberal legislator at the time, recognized this potential document as an invitation to judicial review. He feared a conservative judiciary might hinder enlightened policies and sought authority beyond the ambit of an entrenched rights protection act. At the other end of the political spectrum opposition was in the form of an allegiance to parliamentary supremacy as expressed most notably by Sterling Lyon, the conservative premier of Manitoba. Imbedding section 33, commonly referred to as the Notwithstanding Clause, into the constitutional document alleviated these concerns to a degree that permitted their compliance. It is well established that the impetus for the Notwithstanding Clause was of a political nature. To insert this so inspired clause into an intended sanctuary from capricious legislative acts appears tantamount to allowing the fox to guard the chicken coop. Conceivably the same legislative majority that would create the laws abridging rights could exempt themselves from the charter’s constraints. Prime Minister Brian Mulroney saying in essence that a constitution that failed to protect fundamental rights from the purview of legislative override was of no value, delivered a more impassioned argument in support of this view. The counter argument is simply that prior to 1982 these rights existed by mere statute, vulnerable to legislative majorities and the acquiescence of British parliament. At the very least the particular rights exempt from the scope of section 33 acquired increased protection. So it can be said that the Notwithstanding Clause facilitated the patriation of the constitution and thereby elevated the status of those rights not within s. 33 domain. The true value of this product of constitutional negotiation is to be seen in practice and in potential, not in patriation alone. There has been a dearth of charter cases utilizing s. 33. As a purely political act the Quebec government repealed and then reenacted all laws after having inserted the override section, thus insulating them from charter scrutiny. The Supreme Court upheld this omnibus application of s.33, and more important, interpreted a reference to the section or subsection of the charter instead of an explicit citation of the specific rights affected, as adequate. This “expressly declare” provision was seen as a catalyst for public debate, and the court’s apparent disregard for that consideration was seen as hampering the effectiveness of s.33. More relevant are the other two occasions when the override was utilized. In 1986 the government of Grant Devine, of Saskatchewan, invoked s.33 to shield back to work legislation affecting SGEU . An initial challenge to this action was abandoned by SGEU, therefore this particular case solicited no commentary from the Supreme Court or other sources on the parameters or conditions where override protection of legislation is warranted. What is telling is the muted reaction of the citizenry, media and fellow justice ministers to the invocation of the clause and the resulting denial of right to strike . If the use of the override by Saskatchewan was remarkable for the de facto consent it received from most quarters then equally remarkable was the resounding renouncement of the actions of the Government of Quebec in reaction to its utilization of s.33 . Here was an instance where the Supreme Court dealt explicitly with the override clause. It placed the first restriction on its use when it ruled that it could only be implemented prospectively and not used to invalidate existing legislation. While this ruling seems proper and legally sound, it hardly places sufficient restrictions of use of such an unwieldy tool of constitutional change. The difficulty most constitutional scholars have with respect to s.33 is the deference exhibited by the Supreme Court regarding its usage. Some have suggested s.1 might apply to the override clause allowing it to better reflect democratic ideals . Directly after its inception it was postulated that this might be an avenue for judicial review of override cases. Given the refusal of the Supreme Court to consider the proportionality of override usage to this point, sufficient precedent has been established to preclude such action in the future. Having now established the legal parameters of this issue it is now fair to summarize to current status of the override. It would seem that the argument in favour of s.33 and especially it usage is vulnerable. We have evidenced fundamental rights abrogated and documented absolute deference, perhaps appropriately, from The Supreme Court. The debate now switches to a more historical and philosophical realm. When the Constitution Act of 1982 was passed with the ensconced Charter of Rights and Freedoms Canada was altered from a system of parliamentary supremacy to one of constitutional supremacy. Although the inclusion of s.33 was an attempt to maintain the status quo, in both theory and practice, Canada is forever changed . Historically people have imbued the courts with respect not afforded their legislatures. Certainly their revulsion to the use of s.33 by Premier Bourassa to override freedom of expression rights more galvanized this sentiment. However, in this act lies the genesis of the case in favour of s.33. This singular legislative act so offended the democratic sensibilities of Anglo Canadians that it resonates still with the electorate and influences government policy, to the extent that when Quebec’s sign law was renewed it was passed without using the Notwithstanding clause, falling within appropriate restrictions on expression. Undoubtedly Quebec is very sensitive to its international reputation and eager to be recognized as a legitimate liberal democratic entity, which acts as an artificial restraint on use of the override . The stressor of peer pressure and international regard also factor in discouraging the other Premiers from impulsive use of s.33. Simply stated, the perceived legitimacy of the courts, in terms of rights protection discourages legislatures from disregarding court decisions. A stark example where another artificial constraint was placed on an inappropriate legislative appetite was in Alberta. The citizens of Alberta issued Premier Ralph Klein an unequivocal rebuke after learning of his intention to limit compensation to sterilization victims . This reaction motivated the Alberta government to extensive policy research on when the invocation of the Notwithstanding clause would be appropriate. The most temping occasion was in response to an expected affirmation of gay rights by The Supreme Court. Perhaps surprisingly, given Alberta’s traditionally conservative nature, the respondents never supported by majority the use of s.33 to override the rights of gays, even in the most controversial circumstances. This was undoubtedly compelling enough to inspire legislation prohibiting the use of s.33 unless a majority affirmed its use in a referendum, followed by majority support in the Alberta legislature . Here is an example of the beneficial construct from this charter’s unique dynamic. The Supreme Court “read in ” the extension of rights to gays in the Vried case . This was a purview unavailable to them prior to the adoption of the charter. Contrary to popular sentiment this controversial interpretation of charter rights avoided a legislative proscription, thus further legitimizing these rights. It might further advance the case for s.33 if we establish that contrary to popular sentiment the courts are not the infallible bulwarks of rights protection that prevailing wisdom suggests. The 14th amendment to the American Constitution was ratified in 1865 but suffrage was not extended to black males until 1870 and not to women until 1920. More conspicuously, it was not until Brown v. board of education that state sanctioned racial segregation was abolished. Court decisions are very much the product of political influence and popular sentiment whether immune from the legislative override or not. In the history of the override provision it can be said that of the 3 instances of s.33 usage one was purely political posturing, so as to be inconsequential. Another was reversed upon renewal after 5 years and the 3rd was not sufficiently controversial to inspire the populace to action . The affect of 18 years of constitutional override is not the relegation of rights to common statute standing, but rather, a more thorough appreciation for them whilst retaining the inherent flexibility and legitimacy of legislative override. The true value of s.33 may not be observed now as easily as it might be in it’s final form. The prevailing notion is that through judicial interpretation or legislative act it should be more onerous to affect legislative override, not to the level of constitutional amendment of the rights in question, but perhaps a moderated super majority . The dialogue created by judicial-legislative interplay is truly indispensable to the democratic process, however the possibility exists that the dialogue could be circumvented and replaced with a legislative diatribe. As equally unappealing is the judicial monologue, the disdain for which increasingly dominates legislative analysis in the United States. The override provision effectively eliminates such concerns in Canada. The inevitable democratization of our override provision will in time perfect the dichotomy so vital to legislative-judicial conciliation.


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