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The Canadian Charter's Override Clause: Lessons for Israel†

Published online by Cambridge University Press:  29 February 2016

Lorraine E Weinrib
Lorraine E Weinrib*
Affiliation:
Professor, Faculty of Law, University of Toronto (Canada). l.weinrib@utoronto.ca.
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Abstract

This article considers the role of legislative override clauses in the Canadian and Israeli rights-protecting systems, which share many institutional features. After providing a detailed account of the adoption of the override clause in the Canadian Charter of Rights and Freedoms, as a compromise between legislative supremacy and final judicial review, the article analyses the distinctive and unexpected political dynamics generated by this compromise, including its effect on the exercise of public power and elections. Although adopted to appease political leaders who opposed the Charter on substantive and institutional grounds, the legislative override has to date worked to legitimate judicial review and bring Canada further into the model of the modern constitutional state. The article then considers the lessons that Israel might learn from this analysis in the light of proposals to adopt an override clause to apply to a wider range of fundamental rights and to operate against Supreme Court judgments.

Keywords

rightsoverridenotwithstanding clausemodern constitutional stateCanadaIsraeljudicial reviewlimitation clausesproportionality
Type
Symposium Articles
Information
Israel Law Review , Volume 49 , Issue 1 , March 2016 , pp. 67 - 102
Copyright
Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 2016 

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Footnotes

†

This article is part of a symposium collection of contributions relating to the constitutional override clauses in Israeli and Canadian constitutional law. The other articles in this issue making up this symposium are Adam Dodek, ‘The Canadian Override’, and Rivka Weill, ‘Juxtaposing Constitution-Making and Constitutional-Infringement Mechanisms in Israel and Canada’.

References

1 Constitution Act 1982 (UK), Sch B to the Canada Act 1982 (UK). The authority to amend Canada's written constitution remained under the authority of the UK Parliament pending Canada's adoption of a domestic amending formula. This remnant of UK authority over the Canadian written Constitution was the last vestige of Canada's colonial status within the British Empire. The Charter and all the elements of the 1982 constitutional reform package have the status of supreme law in Canada, and are part of Canada's written Constitution, because of their enactment by the UK Parliament. The reform package contains a domestic amending formula for Canada's written Constitution and terminates this UK authority. It also provides formal recognition of Aboriginal rights.

2 The reform package amended Canada's written Constitution, the Constitution Act 1867 (UK), Canada's constituent instrument. This British statute forged a number of colonies within the British Empire into a federal Dominion in 1867. Under its terms, Canada became a federal parliamentary democracy, subject to British legislative, executive and judicial authority.

3 s 33 of the Charter provides: (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 7–15. (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 the 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).

4 Knesset Resolution, 13 June 1950, DK (1950) 1743 (Israel).

5 CA 6821/93 United Mizrahi Bank Ltd v Migdal Cooperative Village 1995 PD 49(4) 221, http://elyon1.court.gov.il/files_eng/93/210/068/z01/93068210.z01.pdf.

6 Basic Law: Freedom of Occupation, 1992 (Israel); see HCJ 3872/93 Meatrael Ltd v Prime Minister 1993 PD 47(5) 485; and Import of Frozen Meat Law, 1994 (Israel) (Meat and its Products Law).

7 Basic Law: Freedom of Occupation, 1994 (Israel), s 8.

8 Basic Law: Human Dignity and Liberty, 1992 (Israel).

9 Lorraine E Weinrib, ‘The Postwar Paradigm and American Exceptionalism’ in Sujit Choudhry (ed), The Migration of Constitutional Ideas (Cambridge University Press 2006) 84.

10 United Nations General Assembly Res 217A (III), UN Doc A/810 (1948) 71.

11 Weinrib, Lorraine Eisenstat, ‘Canada's Constitutional Revolution: From Legislative to Constitutional State’ (1999) 33 Israel Law Review 13CrossRefGoogle Scholar.

12 Ross Lambertson, Repression and Resistance: Canadian Human Rights Activists, 1930–1960 (University of Toronto Press 2005); Christopher MacLennan, Toward the Charter: Canadians and the Demand for a National Bill of Rights, 1929–1960 (McGill-Queen's University Press 2003); Walker, James W St G, ‘The “Jewish Phase” in the Movement for Racial Equality in Canada’ (2002) 34 Canadian Ethnic Studies 1Google Scholar.

13 Lorraine Eisenstat Weinrib, ‘Trudeau and Canadian Charter of Rights and Freedoms: A Question of Constitutional Maturation’ in Andrew Cohen and JL Granatstein (eds), Trudeau's Shadow: The Life and Legacy of Pierre Elliott Trudeau (Random House of Canada 1998) 257.

14 Barry L Strayer, Canada's Constitutional Revolution (The University of Alberta Press 2013) 43–48.

15 s 2 of the Canadian Bill of Rights, RSC 1985, Appendix III, a federal statute, stipulates that its terms would not apply to a later statute if the Canadian Parliament expressly declared in that later statute that it would operate ‘notwithstanding the Canadian Bill of Rights’. Similar clauses are to be found in the Saskatchewan Human Rights Code, CSS, c S-24.1, s 44; the Alberta Bill of Rights, RSA 1980, c A-16, s 2, and the Quebec Charter of Human Rights and Freedoms, RSQ, c C-12, s 52. The Supreme Court of Canada has expressed the opinion that human rights legislation will ‘prevail’ over inconsistent statutes because of their fundamental and quasi-constitutional status, even without an express directive to that effect, if there is no ‘clear legislative pronouncement’ to the contrary: Winnipeg School Division No 1 v Craton [1985] 2 SCR 150, and Quebec v Montreal [2000] 1 SCR 665, para 27.

16 SC 1960, c 44.

17 eg, Hogan v R [1975] 2 SCR 574, 597.

18 Statute of Westminster 1931 (UK), s 7.

19 For an analysis of the Progressive Conservative Party's contribution, at the federal and provincial levels, to the development of the constitutional reform package, see Nathan Nurgitz and Hugh Segal, No Small Measure: The Progressive Conservatives and the Constitution (Deneau 1983).

20 The Committee received written briefs from 914 individuals and groups and 214 groups made oral presentations. Groups included a variety of religious institutions and organisations, ethnic groups, civil liberties associations, human rights groups, bar associations, medical associations, regional associations, a variety of business groups, Aboriginal groups and band representatives, groups representing the mentally and physically disabled, professional organisations, groups representing the aged and youth, representatives of sexual minorities, arts and culture councils, many language associations including a large number of Francophone organisations, various expert and professional bodies relating to justice and crime issues, etc. The various participants came from across the country and were organised at the national, provincial and local levels: Robert Sheppard and Michael Valpy, The National Deal: The Fight for a Canadian Constitution (Fleet 1982) 137; ‘Special Joint Committee on the Constitution’, Canada's Human Rights History, http://historyofrights.ca/archives/special-joint-committee-constitution-1980-1.

21 Sheppard and Valpy, ibid 137–38.

22 Walter Tarnopolsky, ‘The Constitution and Human Rights’ in Keith Banting and Richard Simeon (eds), And No One Cheered: Federalism, Democracy and the Constitution Act (Methuen 1983) 261, 262–63.

23 Anne F Bayefsky, Canada's Constitution Act 1982 and Amendments: A Documentary History (McGraw-Hill Ryerson 1989) Vol II, 766.

24 Participants in the constitutional reform negotiations for the province of Saskatchewan described this formulation – a federal concession designed to attract provincial support – as setting down ‘as large an element of judicial deference to legislative choices as possible’: Roy J Romanow, Canada – Notwithstanding: The Making of the Constitution, 1976–1982 (Carswell/Methuen 1984) 245, 250.

25 Canadian Charter of Rights and Freedoms (n 1) s 1.

26 Re: Resolution to Amend the Constitution [1981] 1 SCR 753. The legality and convention questions were each issued by a majority of the members of the Court, but by differently constituted majorities. After the constitutional reform package was enacted by the UK without Quebec's consent, Quebec initiated litigation claiming that its consent was necessary. The Supreme Court ruled that Quebec held no such conventional power of veto because it could not establish acceptance or recognition of such a convention by the relevant political actors: Re: Objection by Quebec to a Resolution to amend the Constitution [1982] 2 SCR 793.

27 Re: Resolution to Amend the Constitution, ibid 905.

28 Alan Cairns, ‘The Politics of Constitutional Conservatism’ in Banting and Simeon (n 22) 28, 51.

29 Edward McWhinney, Canada and the Constitution 1979–1982: Patriation and the Charter of Rights (University of Toronto Press 1982) 134–35.

30 ibid 65–71.

31 House of Commons, First Report of the Foreign Affairs Committee, 1980–81 Session, British North America Acts: The Role of Parliament, vol 1, 21 January 1981, xii. For the assessment that there was a strong possibility that the UK Parliament might not enact the amendments without provincial consent see Romanow (n 24) 146–53.

32 ‘Most Feel Trudeau Patriation Plan Will Help Unite Country, Poll Says’, The Globe and Mail, 14 May 1981, P8, reported a Gallup poll indicating 62% national support for the Charter, 15% opposed and 23% indicating that they did not know. The regional breakdown demonstrated consistency: western provinces’ residents, whose premiers most vehemently opposed the Charter, 56% positive; British Columbia residents, 59% positive; Quebec and the Atlantic provinces, 59% positive; and Ontario residents, 68% positive. The poll results were based on 1,032 in-home interviews, with an error rate of not more than 4% 19 times out of 20. ‘Poll Shows 72 per cent Questioned Favour Rights Charter in Constitution’, The Globe and Mail, 10 November 1981, P10, reported a poll conducted for the Canadian Human Rights Commission registering 72% of Canadians in support of a constitutional Charter of Rights. The results were based on 1,960 interviews in June 1981. Calgary Canadian Press, ‘Westerners Favor Rights Bill by 80%, Survey Shows’, The Winnipeg Free Press, 22 October 1981, 18, reported a survey by the Canada West Foundation research group on Canadians’ support for the Charter. The survey canvassed 1,900–2,000 Canadians in May 1981. In the western provinces, the approval rate was 80%. The other provinces also showed strong support for the Charter: Atlantic Canada at 86%; Quebec at 84% and Ontario at 85%. The newspaper noted that support for the Charter was high across the country, in contrast to the western premiers’ strong opposition to it.

33 Sheppard and Valpy (n 20) 68. Chretien opposed a referendum because of the social bitterness and upheaval unleashed by the Quebec separatist government's referendum in 1980.

34 David Erdos, Delegating Rights Protection: The Rise of Bills of Rights in the Westminster World (Oxford University Press 2010) Ch 5 ‘Canada and the Canadian Charter of Rights and Freedoms (1982)’, 79.

35 Ford v Quebec (Attorney General) [1988] 2 SCR 712; Lorraine Eisenstat Weinrib, ‘Learning to Live With the Override’ (1989–90) 35 McGill Law Journal 541.

36 The Quebec government also instituted unsuccessful litigation to challenge the validity of the 1982 amendments on the basis that they lacked Quebec's consent. The Supreme Court of Canada rejected its arguments in Re: Objection by Quebec to a Resolution to Amend the Constitution (n 26), upholding the decision of the Quebec Court of Appeal in the same case: Re: Attorney-General of Quebec and Attorney-General of Canada 134 DLR (3d) 719 (1982). See also Mollie Dunsmuir and Brian O'Neal, ‘Quebec's Constitutional Veto: The Legal and Historical Context’, Library of Parliament, Parliamentary Research Branch, May 1992, http://www.parl.gc.ca/Content/LOP/researchpublications/bp295-e.pdf.

37 Quebec Charter of Human Rights and Freedoms, RSQ, Ch C-12.

38 21 DLR (4th) 354 (1985).

39 Ford (n 35).

40 ibid paras 35–37.

41 Benoit Aubin, ‘3 Ministers Resign over Quebec Bill’, The Globe and Mail, 21 December 1988, A1.

42 ‘Premier Bourassa said the “Distinct Society” Interpretive Clause would have enabled Quebec to Override Charter Enshrined Language Rights’, The Globe and Mail, January 1998, A15; Janet L Hiebert, Limiting Rights (McGill-Queen's University Press 1996) 139–40; Pierre Fournier, A Meech Lake Post-Mortem: Is Quebec Sovereignty Inevitable? (McGill-Queen's University Press 1991) 21–23.

43 Elizabeth Thompson, ‘Bill 178 Killing Meech Accord Bouchard Says’, The Gazette, 1 February 1990, B1.

44 HRC, Ballantyne and Others v Canada, Communication Nos 359/1989 and 385/1989, views of 31 March 1993, UN Doc CCPR/C/47/D/359/1989 and 385/1989/Rev.1.

45 International Covenant on Civil and Political Rights (entered into force 23 March 1976) 999 UNTS 171.

46 Libman v Quebec (Attorney General) [1997] 3 SCR 569 invalidated certain rules relating to participation in a Quebec referendum as breaches of political expression. See also ‘Bouchard Angry … Again: Ready to Use Override Clause to Reject Federal Court Ruling’, The Record, 27 October 1997, A4.

47 Peter O'Neil, ‘PM Vows to Kill Override Clause’, The Vancouver Sun, 22 December 1988, A1.

48 Darrel R Reid, ‘The Election of 1988 and Canadian Federalism’ in Ronald L Watts and Douglas M Brown (eds), Canada: The State of the Federation (Institute of Intergovernmental Relations, Queen's University 1989) 21, 24.

49 Don MacPherson, ‘PQ Reluctant to Override Charter’, The Gazette, 7 December 2000, B3.

50 ‘Lead Me, Bourassa, Or Better Yet, Follow’, The Globe and Mail, 1 April 1993, A22 cites a poll indicating that Quebec residents supported bilingual signs two to one. See also Philip Authier, ‘UN Ruling Influences Quebec's Sign Debate; Will Be One Factor, Bourassa Says’, Hamilton Spectator, 10 April 1993, A5, quoting Premier Bourassa: ‘… even the Parti Québécois concedes it makes Quebec an easy target internationally … there is not a majority of Quebecers who are enthusiastic about using the notwithstanding clause (again)’.

51 Larry Johnsrude, ‘Province Revokes Rights; Government Opts Out of Charter, Limits Sterilization Victims’ Right to Sue for Compensation; Alberta's Sterilization Solution’, Edmonton Journal, 11 March 1998, A1.

52 Allyson Jeffs, ‘About Face: Massive Outcry Forces Klein to Back Down on Controversial Move to Limit Sterilization Settlements’, Edmonton Journal, 12 March 1998, A1; Brian Laghi, ‘Klein Retreats in Rights Scrap’, The Globe and Mail, 12 March 1998, A1.

53 Vriend v Alberta [1998] 1 SCR 493.

54 RSA 1980, c I-2 (amendment 1985, c 33; amendment 1990, c 23). This statute was revised and renamed the Human Rights, Citizenship and Multiculturalism Act in 1996: RSA 2000, c A-25.5.

55 Vriend (n 53) para 119.

56 ibid paras 134–40.

57 R v Oakes [1986] 1 SCR 103, 136.

58 Larry Johnsrude, ‘Klein Poised to Attack “Judicial Activism”: Alberta Tories Could Invoke Notwithstanding Clause to Keep Courts from Becoming “Lawmakers of the Land”’, The Ottawa Citizen, 7 April 1998, A4.

59 Sheila Pratt, ‘Klein Swayed a Divided Tory Caucus Not to Override Top Court's Decision’, Edmonton Journal, 30 March 2008, E4.

60 ibid.

61 Pratt (n 59).

62 Larry Johnsrude, ‘Klein Pressures Caucus to Accept Gay Rights Ruling’, The Ottawa Citizen, 9 April 1998, A5.

63 Brian Laghi, ‘Alberta to Let Court Ruling on Gay Rights Stand’, The Globe and Mail, 10 April 1998, A5.

64 ibid.

65 ibid.

66 Constitutional Referendum Act, RSA 2000, c C-25.

67 David Johansen and Philip Rosen, ‘The Notwithstanding Clause of the Charter’, Library of Parliament Research Publications, Background Paper No BP-194-E, 16 October 2008) http://www.parl.gc.ca/content/lop/researchpublications/bp194-e.htm, fn 34 of which states that ‘Premier Klein's Conservative government subsequently decided in April 2005 not to renew the recently expired notwithstanding clause in that province's Marriage Act’. See also Graham Thomson, ‘Tories Drop Same-Sex Marriage Fight: Klein Regains Control of Issue After Caucus Earlier Proposed Futile Federal Legal Battle’, Edmonton Journal, 5 April 2005. A report prepared for Lethbridge College in 2011 noted that 63% of adults in Alberta supported renewing this override clause, while 30% did not. This poll was commissioned by the Family Action Coalition and carried out by Feedback Research Corporation: Faron Ellis, ‘Albertans’ Opinion on Six Policy Issues’, Lethbridge College, October 2011, http://www.lethbridgecollege.ca/sites/default/files/imce/about-us/applied-research/csrl/Alberta_Opinion_Structure_Fall_2011.pdf.

68 BA Robinson, ‘Same-Sex Marriages in Canada: Debates about SSM in Alberta’, Ontario Consultations on Religious Tolerance, 8 August 2005, http://www.religioustolerance.org/hom_marb38.htm.

69 Ellis (n 67) 3.

70 Sophie Cousineau, ‘Marois Believes Quebec Will Rally Behind Controversial Secular Charter’, The Globe and Mail, 25 August 2013, http://www.theglobeandmail.com/news/politics/charter-of-quebec-values-will-be-uniting-force-for-province-marois-says/article13945945.

71 Daniel LeBlanc, ‘PQ Plans to Shield Religious Symbols Ban from Legal Fight by Adding Secularism to Charter’, The Globe and Mail, 10 September 2013, http://www.theglobeandmail.com/news/politics/pq-plans-to-write-secularism-into-quebecs-charter-of-rights/article14212154.

72 ‘Pauline Marois Willing to Invoke Notwithstanding Clause for Secular Charter’, The Canadian Press, 31 March 2014, http://www.huffingtonpost.ca/2014/03/31/pauline-marois-notwithstanding-secular-charter_n_5063206.html.

73 Ingrid Peritz, ‘PQ Releases Holiday Guide to Defending Values Charter’, The Globe and Mail, 26 December 2013, A8.

74 Graemie Hamilton, ‘The PQ's Story May Not Be Over, But It Feels Like Quebec Has Turned the Page’, National Post, 8 April 2014, http://news.nationalpost.com/news/canada/the-pqs-story-may-not-be-over-but-it-feels-like-quebec-has-turned-the-page.

75 The New Democratic Party has never held national office.

76 Glen McGregor, ‘Ottawa Man Convicted of Terrorism Challenges Constitutionality of Revoking His Citizenship’, Ottawa Citizen, 2 October 2015, http://ottawacitizen.com/news/national/ottawa-man-convicted-of-terrorism-challenges-constitutionality-of-revoking-his-citizenship. The proposed legislation affects members of the Jewish community since they are entitled to acquire Israeli citizenship under the Israeli Law of Return: David Berger and others, ‘New Law Makes Canadian Jews Second-Class Citizens’, Toronto Star, 14 October 2015, http://www.thestar.com/opinion/commentary/2015/10/14/new-law-makes-canadian-jews-second-class-citizens.html.

77 Canada, House of Commons, Debates, 19–23 December 1988, 295–97, 424–25, 522–27, 615–21, 716–17.

78 Department of Justice Act, RSC, 1985, c J-2, s 4.1.

79 Alice Woolley, ‘The Legality of Legal Advising’, ABLawg, 25 January 2013, http://ablawg.ca/2013/01/25/the-legality-of-legal-advising: ‘[The plaintiff] alleges that the policy of the Legislative Services Branch is that legislation will not be viewed as clearly or manifestly inconsistent provided that all of the arguments in favour of proposed legislation's consistency with the … Charter add up to at least a 5% chance of success. … [ie,] that proposed legislation that has a 70%, 80%, 90% or even 94% chance of being struck down by a court is not viewed … as giving rise to any duty to report [inconsistency with the Charter] to the House of Commons by the Minister of Justice’.

80 The court documents in this litigation are available at http://www.charterdefence.ca/trial-related-documents.html.

81 Sean Fine, ‘Stephen Harper's Courts: How the Judiciary Has Been Remade’, The Globe and Mail, 24 July 2015, http://www.theglobeandmail.com/news/politics/stephen-harpers-courts-how-the-judiciary-has-been-remade/article25661306; Sean Fine, ‘Appointment of Russ Brown Extends Harper's Influence on Supreme Court’, The Globe and Mail, 27 July 2015, http://www.theglobeandmail.com/news/politics/alberta-appeal-court-judge-russell-brown-named-to-supreme-court-of-canada/article25728554.

82 Reference re Supreme Court Act, ss 5 and 6 [2014] 1 SCR 433.

83 Tonda MacCharles, ‘Stephen Harper Urged to Apologize for Spat with Chief Justice Beverley McLachlin’, Toronto Star, 25 July 2014, http://www.thestar.com/news/canada/2014/07/25/chief_justice_cleared_in_spat_with_stephen_harper_government.html.

84 Angus Reid Institute, ‘Canadians Have a More Favourable View of Their Supreme Court than Americans Have of Their Own’, 17 August 2015, 6, 9, http://angusreid.org/wp-content/uploads/2015/08/2015.08.14-Supreme-Court-final.pdf. This study of Canadian public opinion, carried out in 2015, referred to a number of Supreme Court judgments and then asked some questions. The subject matter of the study is set out with the percentage of those polled who agreed with the judgment in brackets: judgments included striking down criminal code prohibitions against brothels, selling sex and soliciting a prostitute (54%); recognising Aboriginal tile to land in British Columbia (48%); requiring formal constitutional amendment for reform of the national Senate (50%); striking down a law prohibiting doctor-assisted suicide for consenting competent persons suffering from illness, disease or disability (52%); and striking down mandatory minimum sentences for unlawful possession of a firearm (37%). On the question whether the Charter has been good for Canada, 84% agreed. When asked if the recent decisions mentioned indicated that the Court has had a positive effect 57% said ‘yes’ with regard to Canada as a whole; 58% said ‘yes’ with regard to individual rights and freedoms of Canadians; 50% said ‘yes’ with regard to everyday life for Canadians; and 34% said ‘yes’ with regard to themselves personally. The commentary on these results in the study: ‘Canadians are markedly less likely to see themselves as affected by the Supreme Court personally, yet they embrace it nonetheless’. The responses were higher for the more general question of whether the Supreme Court has had a positive or negative effect in these four dimensions.

85 ibid 13.

86 Centre for Research and Information on Canada, ‘The Charter: Dividing or Uniting Canadians?’ April 2002, 24–25, https://library.carleton.ca/sites/default/files/find/.../cric-crf-02-not.pdf.