Comparative Constitutional Law

Professor Fischer

Class 6: September 8, 2008

Recent Development

• Tuesday October 14, 2008 will be an important political day in Canada? Why?

Canadian Charter of Rights and Freedoms

1982 Canada Act

What Rights Are in the Charter?

• Individual Rights?

• Collective Rights?

• Language Rights?

• Compare to the United States Constitution

Interpretative Problems:

• Canadian Charter of Rights and Freedoms

• 1. Rather vague rights

• 2. Peculiarly Canadian limitations (limitations provision in s. 1, override provision in s. 33)

Section 33: Notwithstanding Clause/La clause dérogatoire

• 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.

• (2)  An Act or a provision of an Act in respect of which a declaration made under this section is in effect shall have such operation as it would have but for the provision of this Charter referred to in the declaration.

• (3)  A declaration made under subsection (1) shall cease to have effect five years after it comes into force or on such earlier date as may be specified in the declaration.

• (4)  Parliament or a legislature of a province may re-enact a declaration made under subsection (1).

• (5)  Subsection (3) applies in respect of a re-enactment made under subsection (4).

Section 33

• Trudeau’s political compromise (“Night of the Long Knives” in 1981)

• Uniquely Canadian though Israel has one in its basic law with respect to freedom of occupation

• Similar clauses are in Canadian BOR (1960), Quebec Charter of Human Rights and Freedoms (1977), Sasketchewan Human Rights Code (1978), Alberta bill of Rights (1980)

Section 33

• “Chequerboard Charter”: s. 33 only applies to some rights – which?

Section 33

• “Chequerboard Charter”: s. 33 only applies to some rights – which? Sections 2, 7-15

Section 33

• Why is the period for a notwithstanding declaration 5 years?

Section 33

• Does this provision mean that the Charter amounts to an insufficient check on Parliamentary power?

Use by Federal Government

• Has the federal government invoked the notwithstanding clause very often?

Party Leaders’ Debate: January 2006

Section 33

• In party leaders’ debate in the run-up to the election on January 23, 2006, Liberal party leader Paul Martin stated that his party would support a constitutional amendment barring the federal government from invoking the notwithstanding clause

• Stephen Harper, leader of the Conservative party, refused to agree to this – but said he would not use the clause to ban same-sex marriages.

Provincial Use of the Notwithstanding Clause

• Quebec used in all laws from 1982 to 1987 when Liberals came to power in Quebec

• Most famous use was in 1989

Quebec Language Controversies

• 1977 Bill 101 only French on commercial signs

• 1988 Ford v. Quebec [1988] SCR 712• 1989 Bill 178 Bourassa’s compromise: only

French on external signs; English on internal OK

• 1993 UN Human Rights Committee ruling• 1993 Bill 86 – additional compromise –

allows English on outdoor signs only if twice as small as French

Unsuccessful Challenge to Quebec Supreme Court

• 2000 Quebec Superior Court upheld Bill 86 based on Quebec as enclave of French speakers

• Supreme Court of Canada refused to hear appeal

The language police of Quebec: Office québécois de la langue

française (OQLF)

Alberta: Bill 202

• On March 16, 2000, Alberta invoked s. 33 in enacting law including an opposite-sex only definition of marriage

Alberta: Bill 202

• The law was struck down by the Supreme Court in 2004 in Re: Same Sex Marriage on federalism grounds: the definition of marriage is within the exclusive domain of the Canadian Parliament

• Notwithstanding clause not renewed when it expired in 2005

• Later in 2005, Canadian Civil Marriage Act enacted which defined marriage as a “union between two persons.”

Premier Ralph Klein: Alberta

• 7/2005: stated "much to our chagrin," the Alberta government will issue marriage licenses to same-sex couples when the bill receives royal assent.”

Limitations Clause Section 1

Section 1

• Charter guarantees are subject “to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”

• Contrast with s. 33

Oakes Test (1986) – Dickson Court

• Unlike s. 33, courts decide whether law meets requirements of s. 1

• (1) sufficiently important objective• (2) rational connection to that objective

(Hogg critical of this)• (3) minimum intrusion on the right (most

important)• (4) no disproportionately severe effects• More on this tomorrow

State Action s. 32

• 32.(1)  This Charter applies• (a)  to the Parliament and government of

Canada in respect of all matters within the authority of Parliament including all matters relating to the Yukon Territory and Northwest Territories; and

• (b)  to the legislature and government of each province in respect of all matters within the authority of the legislature of each province.

RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573

• What did this case hold about the Charter’s application?

State Action

• The words of s. 32(1) give a strong message that the Charter is confined to government action.  This Court has repeatedly drawn attention to the fact that the Charter is essentially an instrument for checking the powers of government over the individual.  The exclusion of private activity from Charter protection was deliberate.  See Retail, Wholesale and Department Store Union et al. v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573

Was Canada spared?

• The difficulties of the U.S. state action doctrine?

• Review: exceptions to state action doctrine

Exceptions

• Governmental functions exception e.g. Marsh v. Alabama (1946)

• Entanglement exception e.g. Shelley v. Kraemer (1948)

• Entwinement: Brentwood (2001)

Remedies s. 24 Charter

An Activist Court?

• Compare to the U.S.

• Explain Hogg & Bushell’s dialogue theory