Podcast
Questions and Answers
What is the significance of having specific laws rather than vague laws?
What is the significance of having specific laws rather than vague laws?
Which principle requires that the reason for overriding the Charter must be rational and unbiased?
Which principle requires that the reason for overriding the Charter must be rational and unbiased?
What must be considered for the principle of proportionality to be satisfied?
What must be considered for the principle of proportionality to be satisfied?
In the case of Ford v Quebec, what was deemed necessary to limit the use of English signs?
In the case of Ford v Quebec, what was deemed necessary to limit the use of English signs?
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What does the principle of Minimal Impairment require in legal measures?
What does the principle of Minimal Impairment require in legal measures?
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What does Section 33 of the Charter allow a government to do?
What does Section 33 of the Charter allow a government to do?
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Which type of rights is subject to legislative override under Section 33?
Which type of rights is subject to legislative override under Section 33?
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Which of the following is NOT listed as a fundamental freedom under Section 2?
Which of the following is NOT listed as a fundamental freedom under Section 2?
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How often is the legislative override invoked according to the information provided?
How often is the legislative override invoked according to the information provided?
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What do Sections 7 to 14 of the Charter primarily deal with?
What do Sections 7 to 14 of the Charter primarily deal with?
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Which group is explicitly mentioned as a protected class under Section 15's equality rights?
Which group is explicitly mentioned as a protected class under Section 15's equality rights?
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What is the primary effect of a law declared under Section 33?
What is the primary effect of a law declared under Section 33?
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Which of the following is a limitation on the legislative override mentioned in the content?
Which of the following is a limitation on the legislative override mentioned in the content?
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Which of the following rights is not subject to legislative override?
Which of the following rights is not subject to legislative override?
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What is the maximum duration that a legislative override can remain in effect?
What is the maximum duration that a legislative override can remain in effect?
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How many times has the legislative override been used to date?
How many times has the legislative override been used to date?
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Which province used the legislative override in 2000 to prevent gay marriage?
Which province used the legislative override in 2000 to prevent gay marriage?
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What is one argument against the legislative override?
What is one argument against the legislative override?
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What does Section 1 of the Canadian Charter of Rights and Freedoms establish about rights?
What does Section 1 of the Canadian Charter of Rights and Freedoms establish about rights?
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One interpretation of the legislative override is that it serves as a safety valve. What does this imply?
One interpretation of the legislative override is that it serves as a safety valve. What does this imply?
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Why is it considered a criticism that fundamental rights yield to a majoritarian decision?
Why is it considered a criticism that fundamental rights yield to a majoritarian decision?
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Study Notes
Section 33: Legislative Override
- Parliament or a provincial legislature can declare an Act operates notwithstanding Charter sections 2 (Fundamental Freedoms) or 7-15 (Legal Rights and Equality Rights).
- This allows a law to remain in effect even if it violates a Charter right or freedom listed in these sections.
- The override can be in effect for a maximum of five years and is tied to the life of Parliament.
- It can be invoked multiple times.
- It has been used 15 times, mostly in Quebec. Examples include Alberta's ban on gay marriage (2000), Quebec's override of minority language rights (1988), and Saskatchewan's Catholic school funding policies. Ontario's Premier Ford threatened to use it regarding Toronto City Council cuts.
- Democratic rights, mobility rights, Indigenous rights, and language rights are not subject to legislative override.
Criticisms and Support for Legislative Override
- Criticisms: A significant constitutional defect; fundamental rights shouldn't be overridden by majority decisions; courts should have the final say.
- Support: A useful "safety valve" to respond to Supreme Court decisions or preempt Charter challenges; acknowledges that courts aren't perfect; rooted in Canadian political tradition; prevents courts from having unlimited power.
Section 1: Reasonable Limits
- The Charter guarantees rights and freedoms subject to "reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society."
- Rights and freedoms are not absolute.
- Laws must not be vague or open-ended to be upheld by courts; they must avoid arbitrary results. Examples citing the Little Sisters Book Store case.
Proportionality Test (Oakes Test)
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A balance between the means to achieve an objective and the burden on the claimant is required.
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The objective must be sufficiently important to justify overriding the Charter.
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A rational connection between the override and the legislative aim must exist.
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The override must minimally impair the Charter right.
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A balance must exist between the benefits of the limit and its effects.
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Rational Connection: The reason for the override must be rational and unbiased. The Oakes case is cited as an example.
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Minimal Impairment: The least intrusive means must be used; Ford v. Quebec (English signs) is mentioned as an example.
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Balance: The effects must be proportional to the objective; the Oakes test is cited.
Fundamental Freedoms (Section 2)
- Freedom of conscience and religion.
- Freedom of thought, belief, opinion, and expression (including press and media freedoms).
- Freedom of peaceful assembly.
- Freedom of association.
Legal Rights (Sections 7-14)
- The text mentions these as including rights relating to arrest and detention, search and seizure, criminal proceedings, and punishment, but doesn't detail specifics.
Equality Rights (Section 15)
- Every individual is equal before and under the law and has the right to equal protection and benefit of the law without discrimination (based on race, national or ethnic origin, color, religion, sex, age, or mental or physical disability).
Determining Which Rights Are More Important
- The text raises questions about prioritizing conflicting rights, such as freedom of religion vs. freedom of speech, freedom of religion vs. gender equality, privacy vs. freedom of the press, and individual rights vs. communal rights; but provides no answers.
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