The Truck and the Brakes: Understanding the Charter's Limitations and Notwithstanding Clauses Symmetrically
(2022) 105 Supreme Court Law Review (2d) 194-227
34 Pages Posted: 15 Jun 2022
Date Written: May 31, 2022
How do statutes relate to the constitutional rights enumerated in the Canadian Charter of Rights and Freedoms? Section 1 of the Charter permits laws to establish “reasonable limits” on rights, while section 33 enables legislatures to enact laws “notwithstanding” certain provisions of the Charter. There is evidence that sections 1 and 33 were drafted to symmetrically offer legislatures the power to contest judicial activism. One way of reading the limitations and notwithstanding clauses together is to say that section 1 allows legislatures to “infringe” rights in ways that courts find justifiable, while section 33 allows legislatures to disagree with courts about what counts as a justified infringement. Another symmetrical approach is to read section 1 as allowing legislatures to “construct” the scope and nature of rights in ways that courts find justifiable, while section 33 empowers legislatures to disagree with courts about the scope of rights and liberties. In this essay I argue that the latter constructive approach to sections 1 and 33 fits better with the text of the Charter and is more justifiable as a matter of political morality. Sections 1 and 33 were primarily meant to allow legislatures to contest judicial interpretations of rights, not to suspend or override rights themselves. Although a majority of the Supreme Court dismissed the constructive approach to section 1 as a matter of “semantics” in Frank v. Canada (Attorney General), in the recent case of Toronto (City) v. Ontario (Attorney General) the Court has embraced a constructive approach to section 33. My argument suggests that a constructive approach to section 33 should be complemented by the kind of constructive reading of section 1 offered by Justices Côté and Brown in their dissent in Frank.
Keywords: limitations clause, section 1, notwithstanding clause, section 33, proportionality, rights, construction, specificationism
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