Comparative Constitutional Law

1. Comparative Constitutional Law Professor Fischer Class 8: September 18, 2006

2. Wrap Up: Canadian Federalism • Privy Council tended to give provincial powers a broader interpretation than federal powers and to interpreted federal POGG power narrowly • Supreme Court after 1949 slightly widened POGG emergency powers/national concern powers and other federal powers (eg over criminal law (environmental), trade and commerce (competition), but not a radical change in approach.

3. 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)

4. 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).

5. 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)

6. Section 33 • Applies to federal and provincial governments

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

8. Section 33 • Why is the period for a notwithstanding declaration 5 years?

9. Section 33 • Does this provision mean that the Charter amounts to an insufficient check on Parliamentary power?

10. Party Leaders’ Debate: January 2006

11. 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. • If Martin were in power, how would section be amended to achieve his aim?

12. Use of the Notwithstanding Clause • Rare

13. Use of the Notwithstanding Clause • Rare: Quebec used in all laws from 1982 to 1987 when Liberals came to power in Quebec • Most famous use was in 1989

14. Quebec Language Controversies • 1977 Bill 101 only French on commercial signs • 1988Ford 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 83 English on outdoor signs only if twice as small as French

15. Unsuccessful Challenge to Quebec Supreme Court • 2000 Quebec Superior Court upheld Bill 83 based on Quebec as enclave of French speakers • Supreme Court of Canada refused to hear appeal

16. Alberta: Bill 202 • On March 16, 2000, Alberta invoked s. 33 in enacting law including an opposite-sex only definition of marriage

17. 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.”

18. 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.”

19. Limitations Clause Section 1

20. 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

21. 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

22. 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.

23. 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

24. State Action Section 32 • Charter guarantee

25. Remedies s. 24 Charter

26. SOURCES OF INTERPRETATION • To what extent did the Privy Council accept legislative history as an aid to interpretation of the Canadian Constitution? • What about the Supreme Court of Canada?

27. CHANGE • Formalism of Privy Council (Constitution interpreted like other statutes) • To: Dickson Court (post 1982 Charter of Rights): “task of expounding a constitution is crucially different from that of construing a statute.” Hunter v. Southam [1984] 2 SCR 145 (Dickson, J.)

28. Other Sources of Interpretation • Compare to U.S. • Stare Decisis (Privy Council, Supreme Court of Canada (bound by own decisions? By Privy Council decisions?) • Academic Writing (Laskin Court (1973-1984, Dickson Court (1984-1990), McLachlin Court (2000-present) • Comparative/International Law Sources (P.C., Supreme Court)