Constitutional Exemptions: Myth or Reality?
National Journal of Constitutional Law, Vol. 11, 2000
23 Pages Posted: 3 Aug 2006
Over the past fifteen years, Canadian trial courts have often resorted to the "constitutional exemption" remedy to uphold the validity of statutory provisions which are generally inoffensive but which have unconstitutional results in rare instances. The use of the remedy, however, has not been clearly defined, and its legal foundation remains precarious. Indeed, the Supreme Court has yet to sanction the use of an exemption while upholding a provision of mandatory application.
This article reviews the history of exemptions and examines their legal foundation. It argues that creation of a valid exemption remedy will require a fair amount of legal creativity, as such a remedy is not generally in accord with the Charter's structure or established Supreme Court precedent.
Keywords: constitutional remedies, exemption, charter of rights, charter, s.24(1), rodriguez, seaboyer, constitutional interpretation
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