Constitutional Exemptions: An Ongoing Problem Requiring a Swift Resolution
University of British Columbia Law Review, Vol. 36, pp. 231-255, 2003
24 Pages Posted: 27 Jul 2006
Nearly seventeen years after the existence of the constitutional remedy was first proposed as a potential solution for unconstitutional legislative overbreadth, the doctrine remains shrouded in mystery. While exemptions continue to be awarded in some provinces as a response to challenges raised under the Charter of Rights and Freedoms, the Supreme Court has yet to acknowledge the legitimacy of the remedy and its manner of operation. According to the author, this is a serious problem that has had a number of unexpected effects. This article examines the current status of the exemption remedy and explores the effects of delaying a resolution to the critical question: how should a court treat a situation where legislation is constitutional in most of its applications but occasionally has an impact that is unconstitutional? The answer to this question will have an enormous impact on the manner in which the Charter of Rights is interpreted and extend into our judicial treatment of rights and remedies.
Keywords: charter of rights and freedoms, constitutional remedies, exemptions, overbreadth, vagueness, latimer, morrissey, rodriguez
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