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.

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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)

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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).

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Section 33

• Trudeaus 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)

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Section 33

• Applies to federal and provincial governments

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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?

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Section 33

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

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Party Leaders Debate January 2006
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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?

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Use of the Notwithstanding Clause

• Rare

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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

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Quebec Language Controversies

• 1977 Bill 101 only French on commercial signs
• 1988 Ford v. Quebec 1988 SCR 712
• 1989 Bill 178 Bourassas 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

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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

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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.

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Limitations Clause Section 1
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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

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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

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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.

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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

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State Action Section 32

• Charter guarantee

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Remedies s. 24 Charter
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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?

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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.)

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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)