Date: Jun 4 | Time: 08:45am to 10:15am | Location: SWING 106
Chair/Président/Présidente : Dave Snow (Guelph University)
Discussant/Commentateur/Commentatrice : Dave Snow (Guelph University)
Notwithstanding the Charter. Federalism and S. 33: Janet Hiebert (Queen's University) Abstract: Charter scholarship has exhibited little interest in the Charter’s influence on federalism. Yet the Charter constrains the diversity federalism promotes. The legal context for interpreting protected rights lacks an obligation or directive for courts to consider or accommodate a key historic rationale for the federal principle in Canada: the insulation of Quebec from pressures of assimilation, the protection of local interests, and the acceptance of diverse policy outcomes amongst provinces.
The Charter’s most explicit recognition of the federal principle is in the controversial notwithstanding clause of s. 33. This paper addresses the notwithstanding clause and its relationship to federalism by asking the following questions: Can uses of the notwithstanding clause be differentiated on the basis of being inspired by federalism as distinct from democratic impulses? What characteristics distinguish a democratic from federalist use of the notwithstanding clause? How are uses to date best classified? Finally, what inferences for federalism can be drawn from what appears to be an increasing political reluctance to invoke the notwithstanding clause?
The paper will provide a brief discussion of the origins of the notwithstanding clause, distinguish what constitutes a federalist and democratic use of the notwithstanding clause, evaluate whether uses to date are illustrative of a federalist or democratic reaction to the Charter, and discuss contestation around the idea that the notwithstanding clause should be considered an instrument for accommodating the federal principle.
Judicial Amendment v. Judicial Interpretation: A Distinction With a Fundamental Difference: Emmett Macfarlane (University of Waterloo) Abstract: Can courts go so far in their reasoning that they are no longer merely interpreting the constitution, but effectively amending it? This paper will examine the conceptual distinction between judicial interpretation and judicial amendment. It will argue there are contexts where justices can depart so far from the constitutional text, the purpose of relevant constitutional provisions, and broad consensus among relevant actors about what the constitution does and does not contemplate that they are engaging in inappropriate amendment of the constitution. In other words, there are instances where judges engage in reasoning in defiance of, or with disregard for, the need to use the constitutional amending formula. The distinction between judicial amendment and judicial interpretation is not a clear or easy one. Many constitutional provisions are broadly worded, and judges enjoy tremendous discretion in assessing their meaning and applying them. At a conceptual level then, the distinction between judicial amendment and interpretation requires a high threshold. The paper will identify a set of factors to establish when courts are no longer engaged in mere interpretation but are fundamentally altering the constitution itself.
The Truck and the Brake: Understanding the Charter’s Notwithstanding and Limitations Clauses Symmetrically: Geoffrey Sigalet (Queen's University) Abstract: This article provides an account of the Canadian Charter’s notwithstanding and limitations clauses and evaluates recent political interactions regarding Charter rights. First, the article reviews the histories of the notwithstanding and limitations clauses, and surveys the post-1982 jurisprudence concerning each clause. Building off of recent work by Dwight Newman, the article then critiques the view, advocated by both critics and proponents of constitutional judicial review, that the notwithstanding clause legally allows for the overriding violation of rights. It is common for commentators on the Charter to say that section 33 allows for the statutory ‘override’ of rights and section 1 allows statutory ‘justified limitations’ of rights. The article argues that the concepts of ‘overriding’ and ‘limiting’ rights are legally and morally ambiguous, and to avoid this ambiguity the clauses must be read symmetrically to permit either the violation of rights or the specification of rights. The five-year expiration of notwithstanding provisions means that they must signal either violations of rights that are immune from the need for section 1 justification as rights violations until they expire, or potential constructions of rights that are immune from the need for section 1 justification as rights constructions until they expire. The article concludes with a discussion of how this theory of the clauses is attractive as a matter of democratic theory, and can help evaluate recent (real and threatened) uses of section 33 (e.g. in Ontario, Saskatchewan, and Quebec) in relation to developments in section 1 jurisprudence (e.g. Bracken v. Ft. Erie).
Objective Jurisprudence: Does Political Science Have Something to Teach Court Jurisprudence?: Christopher Taucar (CE Taucar, Barrister & Solicitor) Abstract: More objective and less ideological or subjective judicial approaches are now issues of interest throughout the world. It provides a more secure basis for rights.
The system of government approach is different from other views on interpretation or jurisprudence, objective or not, and takes the Rule of Law seriously.
In every country a system of government exists. Every system of government is authoritative, knowable, based on law, and State power holders may only act according to law, within the bounds of their jurisdiction, and never inconsistently with the basic rules of that system. These basic rules can only be changed by legal means as set out in the Constitution.
These basic rules are a measure against the actions or decisions of legislature, executive, and courts. The findings of this study question the assumption in an influential stream of contemporary scholarship that there can be no correct answers to legal questions.
These basic rules are largely discoverable through the work of political science, such as political theory, e.g. sovereignty, the foundational stages of development of governmental institutions, particularly parliament and courts, and the jurisdiction/legal powers and legal limitations of these institutions. To be sure, other disciplines are involved, such as law, legal history, and International Law.
This approach fits well with the themes of speaking truth to power (judges in this case), and to empower people to judge judges and ‘democratize’ our Charter of Rights and Freedoms—a process they are largely left out due to the ‘mystique’ of judicial decision making.