Where Did (Section) I Come from? The Debates Over the Limitations Clause at the Special Joint Committee of the Senate and the House of Commons on the Constitution, 1980-81
National Journal of Constitutional Law, Vol. 27, p. 77, 2010
15 Pages Posted: 5 Sep 2011
Date Written: June 5, 2010
This paper contends that the history of the enactment of the limitations clause contained in the Canadian Charter of Rights and Freedoms should be relevant to the interpretation of that provision. This paper has five sections in addition to this introduction. In Part II, I address the argument as to why the history of section 1 should be considered relevant in interpreting that provision. This may seem like a rhetorical question but as constitutional lawyers and scholars in this country know, it is not. I then sketch out a brief history of how the current section 1 came to be. Parts III-V present three themes that emerge from the history of section 1: the relationship between the limitations clause and other sections of the Charter; the question of onus; and conforming to international standards and treaties. Finally, Part VI ends with a brief conclusion and further exhortation regarding the importance of constitutional history.
Keywords: Canada, constitutional law, Charter of Rights and Freedoms, judicial interpretation, constitutional interpretation, judicial review, limitations clause, constitutional history
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