The Notwithstanding Clause and the Canadian Charter

The Notwithstanding Clause and the Canadian Charter
Author: Peter L. Biro
Publisher: McGill-Queen's Press - MQUP
Total Pages: 277
Release: 2024-04-02
Genre: Political Science
ISBN: 0228020220

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Section 33 – what is commonly referred to as the notwithstanding clause (NWC) – was written into the Canadian Charter of Rights and Freedoms to allow Parliament and the provinces to provisionally override certain Charter rights. The Notwithstanding Clause and the Canadian Charter examines the NWC from all angles and perspectives, considering who should have the last word on matters of rights and justice – the legislatures or the unelected judiciary – and what balance liberal democracy requires. In the case of Quebec, the use of the clause has been justified as necessary to preserve the province’s culture and promote its identity as a nation. Yet Quebec’s pre-emptive and sweeping invocation of the clause also challenges the scope of judicial review and citizens’ recourse to it, and it tests the assumption that a dialogue between the judiciary and the legislature is always preferable in instances in which the legislative branch decides to suspend the operation of certain Charter rights and freedoms. By virtue of its contested purposes, interpretations, operation, and applications, the NWC represents and, to an extent, defines both the character and the very real vulnerabilities of liberal constitutionalism in Canada. The significance, effects, and legitimacy of the NWC have been vigorously debated within scholarship and among politicians and activists since the patriation of the Canadian Constitution in 1982. In The Notwithstanding Clause and the Canadian Charter leading scholars, jurists, and policy experts elucidate and prescribe reforms to the application of this consequential clause about which so much is written, and around which there is relatively little consensus.

The Notwithstanding Clause of the Charter

The Notwithstanding Clause of the Charter
Author: David Johansen
Publisher:
Total Pages: 14
Release: 2012
Genre: Civil rights
ISBN:

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The constitutional notwithstanding clause set out in section 33 of the Canadian Charter of Rights and Freedoms (hereinafter referred to as the Charter of Rights or the Charter) has been controversial since its emergence from a November 1981 Federal-Provincial Conference of First Ministers. The controversy became more pronounced at the time of the 15 December 1988 Supreme Court of Canada decisions in the Ford and Devine cases dealing with the signage provisions of Quebec's Bill 101 (Charter of the French Language) and the subsequent adoption by the Quebec National Assembly of Bill 178 (An Act to Amend the Charter of the French Language). This legislation contained a section 33 override clause (in this case affecting Charter of Rights guarantees of freedom of expression (section 2(b)) and equality rights (section 15)). After setting out the content of the section 33 notwithstanding clause, this paper will trace its development in 1981 and describe the potential use then ascribed to it by its drafters, parliamentarians and others. The paper will then go on to point out actual instances when the notwithstanding clause has been invoked. Finally, it will present a number of arguments for and against the use of the clause.

The Notwithstanding Clause

The Notwithstanding Clause
Author: Jeffrey Lawrence
Publisher:
Total Pages: 16
Release: 1989
Genre: Canada
ISBN: 9780660132990

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Constitutional Dialogue

Constitutional Dialogue
Author: Geoffrey Sigalet
Publisher: Cambridge University Press
Total Pages: 487
Release: 2019-05-02
Genre: Law
ISBN: 1108417582

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Identifies how and why 'dialogue' can describe and evaluate institutional interactions over constitutional questions concerning democracy and rights.

The Oxford Handbook of the Canadian Constitution

The Oxford Handbook of the Canadian Constitution
Author: Peter Crawford Oliver
Publisher: Oxford University Press
Total Pages: 1169
Release: 2017
Genre: Law
ISBN: 0190664819

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The Oxford Handbook of the Canadian Constitution provides an ideal first stop for Canadians and non-Canadians seeking a clear, concise, and authoritative account of Canadian constitutional law. The Handbook is divided into six parts: Constitutional History, Institutions and Constitutional Change, Aboriginal Peoples and the Canadian Constitution, Federalism, Rights and Freedoms, and Constitutional Theory. Readers of this Handbook will discover some of the distinctive features of the Canadian constitution: for example, the importance of Indigenous peoples and legal systems, the long-standing presence of a French-speaking population, French civil law and Quebec, the British constitutional heritage, the choice of federalism, as well as the newer features, most notably the Canadian Charter of Rights and Freedoms, Section Thirty-Five regarding Aboriginal rights and treaties, and the procedures for constitutional amendment. The Handbook provides a remarkable resource for comparativists at a time when the Canadian constitution is a frequent topic of constitutional commentary. The Handbook offers a vital account of constitutional challenges and opportunities at the time of the 150th anniversary of Confederation.

Canada in the World

Canada in the World
Author: Richard Albert
Publisher: Cambridge University Press
Total Pages: 483
Release: 2018
Genre: Law
ISBN: 1108419739

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Marking the Sesquicentennial of Confederation in Canada, this book examines the growing global influence of Canada's Constitution and Supreme Court on courts confronting issues involving human rights.

Charter Conflicts

Charter Conflicts
Author: Janet Hiebert
Publisher: McGill-Queen's Press - MQUP
Total Pages: 310
Release: 2002
Genre: Law
ISBN: 9780773524088

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The first comprehensive examination of how the Charter influences political choices on social policy.

Judicial Power and Canadian Democracy

Judicial Power and Canadian Democracy
Author: Paul Howe
Publisher: McGill-Queen's Press - MQUP
Total Pages: 352
Release: 2001-03-29
Genre: Political Science
ISBN: 0773568891

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The controversy raises challenging questions about the role of a powerful judiciary in a democracy. In Judicial Power and Canadian Democracy, a series of essays commissioned by the Institute for Research on Public Policy, some of Canada's foremost commentators - academics, politicians, and Supreme Court judges themselves - take up the debate. Some tangle over the pivotal question: should judges have the decisive say on issues involving entrenched rights that have profound implication for the policy preferences of elected bodies? Others examine related issues, including Supreme Court appointment procedures, interest group litigation, the historical roots of the notwithstanding clause, and the state of public opinion on Canada's courts. Those interested in the power of the judicial branch will find much in this collection to stimulate fresh thinking on issues that are likely to remain on the public agenda for years to come. Contributors include Joseph F. Fletcher (Toronto), Janet Hiebert (Queen's), Gregory Hein (Toronto), Peter W. Hogg (York), Paul Howe, Rainer Knopff (Calgary), Sébastien Lebel-Grenier (Sherbrooke), Howard Leeson (Regina), Kate Malleson (London School of Economics), E. Preston Manning (Reform Party of Canada), Hon. Beverley McLachlin (Supreme Court of Canada), F.L. Morton (Calgary), Pierre Patenaude (Sherbrooke), Peter Russell, Allison A. Thornton (Blake, Cassels and Graydon), Frederick Vaughan (emeritus, Guelph), Lorraine Eisenstat Weinrib (Toronto), Hon. Bertha Wilson (emeritus, Supreme Court of Canada), and Jacob Ziegel (Toronto).

A Consolidation of the Constitution Acts 1867 to 1982

A Consolidation of the Constitution Acts 1867 to 1982
Author: Canada
Publisher: Brantford : W. Ross Macdonald School, 1985. (Toronto : CNIB)
Total Pages: 188
Release: 1983
Genre: Law
ISBN:

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Consolidated as of April 17, 1982.