Week 4 - Legislative Override, Litigation, and Oakes (3).pdf

Legislative Override and Reasonable Limits LAW 3002 Week 4 Sophia Pacini Legislative Override - Section 33 33. (1) Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof...

Legislative Override and Reasonable Limits LAW 3002 Week 4 Sophia Pacini Legislative Override - Section 33 33. (1) Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter. Legislative Override Notwithstanding clause Constraining of judicial review Rarely Used Fundamental structure of Charter Section 33 Permits provincial or federal government to declare that a law should operate notwithstanding a provision of the charter in: Section 2: Fundamental Freedoms Section 7-14: Legal Rights Section 15: Equality Rights A law will remain in effect despite violating a charter guaranteed right or freedom, under the listed section This means that the fundamental freedoms are subject to being overridden by legislative decision Fundamental Freedoms What are they? Section 2 - Fundamental Freedoms 2 Everyone has the following fundamental freedoms: (a) freedom of conscience and religion; (b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication; (c) freedom of peaceful assembly; and (d) freedom of association. Sections 7 to 14 – Legal Rights Arrest and detention Search and seizure Criminal proceedings Punishment Section 15 – Equality Rights 15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability Can you Override Right or Freedom? Do you think legislative override can be extended to all rights and freedoms? If no, what sections do you think are barred from having legislative override envoked? Limitations of Legislative Override Legislative override not extend to: Democratic rights The right to vote The right to regular sessions of parliament Mobility rights Indigenous rights Language rights Section 33 Cont'd Compromise to meet concerns about the enhanced power of judicial review Can be in effect for maximum period of 5 years Tied to the life of parliament Allows for Canadian to vote in new members who could undo or not undo the legislative override No limit on number of times invoked Argument - it is a significant defect Fundamental rights should not be overruled by majoritarian decisions Uses Used 15 times to date Majority of uses in Quebec Alberta, 2000: Used it to stop gay marriage Quebec, 1988: Parti Quebecois used it to override minority language rights Saskatchewan: Catholic school funding Ontario: Premier Ford threatened to use it to cut the Toronto City Council Criticisms of Legislative Override Significant defect in Canadian constitution Fundamental rights and freedoms should never have to yield Courts should have exclusive and final say Supports for Legislative Override Useful safety valve Can be used in response to Supreme Court decisions and to pre-empt Charter challenges The courts are not perfect or flawless Rooted in Canadian political and constitutional tradition Ensures courts do not have unlimited power Prevents the "last word" Rights and Freedoms In Canada, do we have unlimited / unrestricted / absolute rights and freedoms? Section 1: Reasonable Limits 1. "The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society." Section 1: Reasonable Limits Rights and freedoms are not absolute Characteristic to Canada A double-edged sword This section also garuntees rights and freedoms Which rights are more important? 1. Freedom of religion or freedom of speech? 2. Freedom of religion or gender equality? 3. Privacy vs freedom of the press 4. Individual rights vs communal rights? Limits “Prescribed by law” Courts refuse to uphold laws that are open-ended / vague (eg: Immoral goods & the Little Sisters Book Store) The law cannot allow arbitrary results ▪ One person cannot decide ▪ The courts want specific laws that are close-ended ▪ Not vague laws where one person can allow one person or case to dictate what someone can read or watch Proportionality The balance between the means to achieve the objective & the burden on the claimant Must be important enough to override the Charter Must be rational connection between override & legislative aim Override must impact the Charter as little as possible Balance or proportionality between the benefits of the limit & its effects Rational Connection: Limit & Objective Reason for overriding the charter must be rational and un-biased Oakes: are you innocent till proven guilty, or guilty of trafficking till you can prove otherwise? How much drugs is personal? Chaoulli v Quebec: prohibition of private health care preserve integrity of health care Minimal Impairment Least Intrusive means Ford v Quebec English signs in Quebec: preservation of French was sufficient to uphold law, but cannot prohibit English. English signs in Quebec Preservation of French language was sufficient to uphold law, but cannot prohibit English. Challenged S. 2 Freedom of Expression Need to keep the balance Balance Oakes “a proportionality between the effects of the measure … and the objective” Is the case effective in achieving this? How do we prove guilt? Should the police always wait for someone to commit a crime before arresting someone? References Sharpe, R.J. & Roach, K. (2017). The Charter of Rights and Freedoms (sixth edition). Toronto, ON: Irwin Law.