Constitutional Exemptions: Myth or Reality?

National Journal of Constitutional Law, Vol. 11, 2000

23 Pages Posted: 3 Aug 2006

See all articles by Peter Sankoff

Peter Sankoff

University of Alberta - Faculty of Law

Abstract

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

Suggested Citation

Sankoff, Peter, Constitutional Exemptions: Myth or Reality?. National Journal of Constitutional Law, Vol. 11, 2000. Available at SSRN: https://ssrn.com/abstract=920919

Peter Sankoff (Contact Author)

University of Alberta - Faculty of Law ( email )

Edmonton, Alberta T6G 2H5
Canada

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