Goldworthy article Flashcards
what type of clause is section 33 of the Canadian Charter of Rights,
override clause
Section 33 of the Canadian Charter of Rights famously provides
that Canadian legislation
“may expressly declare … that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter.”’
This ‘notwithstanding’ or ‘override’ clause enables legislatures to override
those specified sections of the Charter, and the rights they protect, although only for renewable five-year period
Section 33 has been strongly criticized by many supporters of the Charter, on the predictable ground that it is incompatible with
the main purpose of constitutionally entrenching rights
As they see it, that purpose is to protect rights from being overridden by legislation
what the Charter purports to
grant with one hand, it takes away with the other
Contradiction in s 33 of Canadian Charter of Rights
While posing as
a constraint on the power of the majority to override the rights of individuals and minorities, it explicitly authorises the majority to do
just that
There are
basically two ways of defending s 33
Firstly
legislature might sometimes be justified in overriding Charter rights in order to protect some competing right or interest, of greater weight
There are
basically two ways of defending s 33
But the charter already provides for possibility of first defence
because section 1 of charter says “subject . . . to such
reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”
- unlike Bill of Rights where the rights rights it protects are absolute and indefeasible
What was the real problem s 33 was designed to overcome according to the 1st defence
judicial interpretations of Charter provisions, including section 1.
What was the real problem s 33 was designed to overcome according to the 2nd defence
to enable legislatures to override judicial
interpretations or applications of Charter rights with which they reasonably disagree
What does the second defence overcome
criticisms of section 33 made by Charter supporters, but also the objections of those who oppose the Charter on the ground that it is undemocratic
the most powerful and popular argument against the judicial enforcement of constitutional rights
it is undemocratic for unelected judges to invalidate laws enacted by a democratically elected legislature.
what effect does section 33 have on the legitimacy of JR
Makes it irrelevant because it the legislature retains the final say
What objections does section 33 overcome
overcomes rights-based objections, because
it preserves the democratic right to make the final decision
according to waldron, a democratic objection to JR must also be a
rights based objection
For Goldsworthy, he disagrees that democratic objection to JR must be a rights based objection b/c
Democracy has been defended on many grounds
other than rights, such as perfectionist and consequentialist
grounds (which I will collectively call goal-based grounds).
Democracy has been defended on many grounds
other than rights, such as perfectionist and consequentialist
grounds (which I will collectively call goal-based grounds). For
example
widespread participation in public debate and decision-making, in which all are treated as equals, helps develop important civic virtues:
- It lessens feelings of
powerlessness, and
- improves self-confidence and self-respect;
- it promotes education
Carefully designed surveys of
public opinion in Canada indicate that,
more than
two-thirds of the Canadian public prefer the courts, rather than legislatures, to have the final say in relation to Charter rights
more than
two-thirds of the Canadian public prefer the courts, rather than legislatures, to have the final say in relation to Charter rights
y
a positive distrust of their elected legislators.
when a bill of rights includes a
comprehensive override clause,
it survives Waldron’s rights-based objection
Precisely because
it enables them to be overridden, such a clause has the potential to
generate
generate, among the legislators and electorate, the “politically vital discourse on the meaning
of rights”
Does section 33 fulfil its potential
The clause rarely been invoked
One reason why section 33 is rarely used
unwillingness of legislators to “take on” the judiciary because of its superior popularity among the general public;
another reason why section 33 is rarely used
a preference for less drastic legislative responses with override being used as last resort
third reason why section 33 is rarely used
futility given that an override expires after five years,
unless it is renewed
If a bill of rights includes a comprehensive override clause, the question of its compatibility with democratic values
cannot be settled by appealing to Waldron’s ‘right of rights’-the right to participate on an equal basis in the final determination of public policy.
- This is because the override clause preserves that right.
invoking section 33 after courts have acted, is saying to the public
we believe that what we are about to do might well violate Charter rights but we want the Act to still be effective regardless
Distinguish canada and US’s judicial review
Canada does not have US strong judicial review even though it has constituionalized bill of rights because of s 33
objection to canada not having strong judicial review
what happens after 5 years for s 33
judges view on how rights in Canada’s Charter of Right should be prevails. must be repassed every 5 years.
objection to canada not having strong judicial review
only used once
First Explanation why legislature rarely use s 33
Proponents claim the courts have generally done a good job protecting rights
there have been cases in which governments have been opposed to a judicial ruling, but unwilling to invoke the clause
there have been cases in which governments have been opposed to a judicial ruling, but unwilling to invoke the clause
e.g.
R v Sharpe
Second Explanation why legislature rarely use s 33
Public opinion
very unpopular with the electorate, and governments have been reluctant to use
“[m]any consider
Parliament’s ability to insist temporarily on the primacy of its judgment over judicial rulings, to be inconsistent with the purpose of a bill of rights.”
