Goldworthy article

Question 1

what type of clause is section 33 of the Canadian Charter of Rights,

Answer 1

override clause

Question 2

Section 33 of the Canadian Charter of Rights famously provides
that Canadian legislation

Answer 2

“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

Question 3

Section 33 has been strongly criticized by many supporters of the Charter, on the predictable ground that it is incompatible with

Answer 3

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

Question 4

Contradiction in s 33 of Canadian Charter of Rights

Answer 4

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

Question 5

There are
basically two ways of defending s 33
Firstly

Answer 5

legislature might sometimes be justified in overriding Charter rights in order to protect some competing right or interest, of greater weight

Question 6

There are
basically two ways of defending s 33

But the charter already provides for possibility of first defence

Answer 6

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

Question 7

What was the real problem s 33 was designed to overcome according to the 1st defence

Answer 7

judicial interpretations of Charter provisions, including section 1.

Question 8

What was the real problem s 33 was designed to overcome according to the 2nd defence

Answer 8

to enable legislatures to override judicial

interpretations or applications of Charter rights with which they reasonably disagree

Question 9

What does the second defence overcome

Answer 9

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

Question 10

the most powerful and popular argument against the judicial enforcement of constitutional rights

Answer 10

it is undemocratic for unelected judges to invalidate laws enacted by a democratically elected legislature.

Question 11

what effect does section 33 have on the legitimacy of JR

Answer 11

Makes it irrelevant because it the legislature retains the final say

Question 12

What objections does section 33 overcome

Answer 12

overcomes rights-based objections, because

it preserves the democratic right to make the final decision

Question 13

according to waldron, a democratic objection to JR must also be a

Answer 13

rights based objection

Question 14

For Goldsworthy, he disagrees that democratic objection to JR must be a rights based objection b/c

Answer 14

Democracy has been defended on many grounds
other than rights, such as perfectionist and consequentialist
grounds (which I will collectively call goal-based grounds).

Question 15

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

Answer 15

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

Question 16

Carefully designed surveys of

public opinion in Canada indicate that,

Answer 16

more than
two-thirds of the Canadian public prefer the courts, rather than legislatures, to have the final say in relation to Charter rights

Question 17

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

Answer 17

a positive distrust of their elected legislators.

Question 18

when a bill of rights includes a

comprehensive override clause,

Answer 18

it survives Waldron’s rights-based objection

Question 19

Precisely because
it enables them to be overridden, such a clause has the potential to
generate

Answer 19

generate, among the legislators and electorate, the “politically vital discourse on the meaning
of rights”

Question 20

Does section 33 fulfil its potential

Answer 20

The clause rarely been invoked

Question 21

One reason why section 33 is rarely used

Answer 21

unwillingness of legislators to “take on” the judiciary because of its superior popularity among the general public;

Question 22

another reason why section 33 is rarely used

Answer 22

a preference for less drastic legislative responses with override being used as last resort

Question 23

third reason why section 33 is rarely used

Answer 23

futility given that an override expires after five years,

unless it is renewed

Question 24

If a bill of rights includes a comprehensive override clause, the question of its compatibility with democratic values

Answer 24

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.

Question 25

invoking section 33 after courts have acted, is saying to the public

Answer 25

we believe that what we are about to do might well violate Charter rights but we want the Act to still be effective regardless

Question 26

Distinguish canada and US’s judicial review

Answer 26

Canada does not have US strong judicial review even though it has constituionalized bill of rights because of s 33

Question 27

objection to canada not having strong judicial review

what happens after 5 years for s 33

Answer 27

judges view on how rights in Canada’s Charter of Right should be prevails. must be repassed every 5 years.

Question 28

objection to canada not having strong judicial review

Answer 28

only used once

Question 29

First Explanation why legislature rarely use s 33

Answer 29

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

Question 30

there have been cases in which governments have been opposed to a judicial ruling, but unwilling to invoke the clause
e.g.

Answer 30

R v Sharpe

Question 31

Second Explanation why legislature rarely use s 33

Answer 31

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.”