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 Right